EMPLOYMENT AGREEMENT
Exhibit 10.1
This Employment Agreement is made and entered into as of the 22nd day of March, 2006, by and
between EMAGEON INC., a Delaware corporation (the “Company”), and XXXXX XXXXX, an individual
resident of the State of Alabama (the “Executive”), the terms and conditions of which are as
follows:
SECTION 1. EFFECTIVE DATE; TERM OF EMPLOYMENT
(a) The Company shall employ Executive as Chief Operating Officer during the term of his
employment, subject to the terms and conditions set forth in this Employment Agreement, and
Executive hereby accepts such employment.
(b) The effective date of this Employment Agreement (the “Effective Date”) shall be March 22,
2006.
(c) Unless earlier terminated as provided herein, Executive’s employment under this Employment
Agreement shall be for a rolling, eighteen (18) month term (the “Term”) commencing on the Effective
Date, and shall be deemed to automatically, without further action by either the Company or
Executive, extend each day for an additional day, such that the remaining term of the Employment
Agreement shall continue to be eighteen months; provided, however, that either party may, by
written notice to the other, cause this Employment Agreement to cease to extend automatically and,
upon such notice, the “Term” of this Employment Agreement shall be the eighteen months following
the date of such notice. If no such notice to cease to extend has been given and the Executive’s
employment is terminated by the Executive for Good Reason or by the Company without Cause, for
purposes of calculating the Severance Period as defined in Section 5(c)(2) below, the remaining
Term of this Employment Agreement shall be deemed to be eighteen months from the Executive’s Date
of Termination.
SECTION 2. POSITION AND DUTIES AND RESPONSIBILITIES
(a) Position. Executive shall be the Chief Operating Officer of the Company.
(b) Duties and Responsibilities. Executive’s duties and responsibilities shall be
those normally associated with an executive officer’s position of chief operating officer, plus any
additional duties and responsibilities that the Chief Executive Officer (“CEO”) or Board of
Directors (the “Board”) of the Company from time to time may assign orally or in writing to
Executive. Executive shall report to the CEO and shall have such powers as may be delegated to him
by the CEO. Executive shall undertake to perform all Executive’s duties and responsibilities for
the Company in good faith and on a full-time basis and shall at all times act in the course of
Executive’s employment under this Employment Agreement in the best interest of the Company,
provided that Executive may serve on corporate, civic, educational or charitable boards or
committees, if such service does not materially conflict with or impair Executive’s ability to
discharge his fiduciary and other responsibilities to the Company under this Employment Agreement
and applicable law.
SECTION 3. COMPENSATION AND BENEFITS
(a) Base Salary. Executive’s initial base salary shall be Two Hundred Fifty-Five
Thousand Dollars ($255,000) per year (“Base Salary”), which Base Salary shall be payable in
accordance with the Company’s standard payroll practices and policies for executive officers and
shall be subject to such withholdings as required by law or as otherwise permissible under such
practices or policies. The Base Salary shall be subject to periodic increases (but not decreases)
as determined by the Board.
(b) Annual Bonus and Other Incentive Compensation. During the Term, Executive shall
be eligible to receive an annual bonus based upon achieving targeted financial objectives or other
performance goals, in accordance with the annual bonus plan established by the Board. Executive
shall also be eligible to participate in such other annual bonus and incentive compensation
programs as the Board shall make available to executive officers.
(c) Employee Benefit Plans. Executive shall be entitled to participate in the
employee benefit plans, programs and policies (including health, life, disability, dental and
retirement plans) maintained by the Company that cover executive officers in accordance with the
terms and conditions of such plans, programs and policies as in effect from time to time.
(d) Vacation. Executive shall be entitled to paid time off for vacation, illness,
holidays and personal reasons in accordance with the Company’s plans, policies and practices in
effect from time to time for executive officers, and any such paid vacation shall be taken at such
time or times so as not to materially and adversely interfere with the business of the Company.
(e) Business Expenses. Executive shall have the right to be promptly reimbursed for
Executive’s reasonable and appropriate business expenses which Executive incurs in connection with
the performance of Executive’s duties and responsibilities under this Employment Agreement in
accordance with the Company’s expense reimbursement policies and procedures for its executive
officers.
(f) Directors’ and Officers’ Insurance. Effective as of the Effective Date, the
Company shall take all reasonable steps to ensure that Executive has been provided with adequate
coverage under a directors’ and officers’ liability insurance policy.
SECTION 4. TERMINATION OF EMPLOYMENT
(a) Death. Executive’s employment shall terminate automatically upon Executive’s
death.
(b) Disability. The Company shall have the right to terminate Executive’s employment
on or after the date Executive incurs a Disability. The term “Disability” as used in this
Employment Agreement shall have the meaning ascribed to such term in the Company’s long-term
disability plan covering the Executive, or in the absence of such plan, a meaning consistent with
Section 22(e)(3) of the Internal Revenue Code of 1986,
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as amended (the “Code”). The existence of a Disability shall be determined by the Board in
good faith.
(c) Termination by the Company. The Company may terminate Executive’s employment at
any time with or without Cause. The term “Cause” as used in this Employment Agreement shall mean
any of the following reasons:
(1) Executive’s willful and continued breach of his duties after written demand for
performance has been made (other than any such failure resulting from incapacity due to
physical or mental illness, and specifically excluding any failure by Executive, after
reasonable efforts, to meet performance expectations and any failure by Executive to follow
directions or take any action that Executive considers in good faith to be in violation of
any applicable professional or ethical rules or obligations);
(2) Executive’s willfully engaging in illegal conduct or gross misconduct that is
demonstrably and materially injurious to the Company;
(3) Executive’s material breach of this Employment Agreement, any other material
agreement with the Company, or any Company policy, where such breach proves to be
demonstrably and materially injurious to the Company;
(4) Executive’s breach of any of the covenants contained in Section 7 of this
Employment Agreement relating to confidentiality, non-solicitation or non-competition; or
(5) Executive’s conviction of a felony or a serious misdemeanor involving moral
turpitude, theft or dishonesty.
With respect to paragraphs (1), (2) and (3) above, Executive shall not be deemed to have been
involuntarily terminated for Cause unless and until there shall have been delivered to him a copy
of a resolution duly adopted by the affirmative vote of not less than a majority of the entire
membership of the Board at a meeting of the Board (after reasonable notice to Executive and an
opportunity for him, together with his counsel, to be heard before the Board), finding that, in the
good faith opinion of the Board, Executive was guilty of conduct set forth above in paragraphs (1),
(2), or (3) and specifying the particulars thereof in detail. For purposes of this Employment
Agreement, no act or failure to act by Executive shall be deemed to be “willful” unless done or
omitted to be done by Executive not in good faith and without reasonable belief that Executive’s
action or omission was in the best interests of the Company.
(d) Termination by the Executive. The Executive shall have the right to resign at any
time, with or without Good Reason. The term “Good Reason” shall mean the occurrence (without
Executive’s express written consent) of any one of the following acts by the Company, or failures
by the Company to act, unless, in the case of any act or failure to act described below, such act
or failure to act is corrected by the Company prior to the Date of Termination specified in the
notice of termination given in respect thereof:
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(1) a material reduction in Executive’s duties or responsibilities; provided, however,
that the fact that Executive’s employment after a Change in Control shall be with a
non-publicly traded subsidiary of an entity resulting from or surviving the Change in
Control, if that is the case, shall not of itself be deemed a material diminution in
Executive’s duties or responsibilities for purposes of this paragraph;
(2) a reduction in Executive’s Base Salary or target bonus;
(3) the failure by the Company to maintain a benefit program (or to provide a
substitute benefit program) that is material to Executive’s overall compensation;
(4) the relocation of Executive’s office or the Company’s headquarters from its
location on the Effective Date to a location more than 35 miles away; or
(5) the Company’s material breach of any other provision of this Employment Agreement.
Executive’s right to terminate the Executive’s employment for Good Reason shall not be
affected by the Executive’s incapacity due to physical or mental illness, except for a Disability
as defined in Section 4(b) above. Executive’s continued employment shall not constitute consent
to, or a waiver of rights with respect to, any circumstance constituting Good Reason hereunder.
Any claim of Good Reason shall be communicated by the Executive to the Company in writing and
shall specifically identify the factual details concerning the event(s) giving rise to Executive’s
claim of Good Reason under this Section 4(d). The Company shall have an opportunity to cure any
claimed event of Good Reason prior to the specified Date of Termination.
(e) Expiration of Term. Executive’s employment shall automatically terminate upon the
expiration of the Term of this Employment Agreement.
(f) Date of Termination. Executive’s Date of Termination shall be the earliest to
occur of (i) the date specified in the notice of termination (which, unless otherwise required by
this Employment Agreement, may be immediate) as the date upon which Executive’s employment with the
Company is to cease, (ii) the date of Executive’s death, (iii) in the event of Executive’s
Disability, the date determined by the Board, or (iii) the last day of the Term of this Employment
Agreement. In the case of termination by Executive for Good Reason, the Date of Termination shall
not be less than thirty (30) days nor more than sixty (60) days from the date the notice of
termination is given. In the case of a voluntary termination by Executive without Good Reason, the
Date of Termination shall not be less than sixty (60) days from the date the notice of termination
is given, unless the Company specifies an earlier Date of Termination.
(g) Change in Control. For purposes of this Employment Agreement, a “Change in
Control” shall mean any of the following events:
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(1) individuals who, on the Effective Date, constitute the Board of Directors of the
Company (the “Incumbent Directors”) cease for any reason to constitute at least a majority
of such Board, provided that any person becoming a director after the Effective Date and
whose election or nomination for election was approved by a vote of at least a majority of
the Incumbent Directors then on the Board shall be an Incumbent Director; provided,
however, that no individual initially elected or nominated as a director of the Company as
a result of an actual or threatened election contest with respect to the election or
removal of directors (“Election Contest”) or other actual or threatened solicitation of
proxies or consents by or on behalf of any “person” (such term for purposes of this Section
6 being as defined in Section 3(a)(9) of the Securities Exchange Act of 1934 (the “Exchange
Act”) and as used in Section 13(d)(3) and 14(d)(2) of the Exchange Act) other than the
Board (“Proxy Contest”), including by reason of any agreement intended to avoid or settle
any Election Contest or Proxy Contest, shall be deemed an Incumbent Director; or
(2) any person is or becomes a “beneficial owner” (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of either (i) 50% or more of the then-outstanding
shares of common stock of the Company (“Company Common Stock”) or (ii) securities of the
Company representing 50% or more of the combined voting power of the Company’s then
outstanding securities eligible to vote for the election of directors (the “Company Voting
Securities”); provided, however, that for purposes of this paragraph (2), the following
acquisitions of Company Common Stock or Company Voting Securities shall not constitute a
Change of Control: (A) an acquisition directly from the Company, (B) an acquisition by the
Company or a subsidiary of the Company, (C) an acquisition by any employee benefit plan (or
related trust) sponsored or maintained by the Company or any subsidiary of the Company, or
(D) an acquisition pursuant to a Non-Qualifying Transaction (as defined in paragraph (3)
below); or
(3) the consummation of a recapitalization, reorganization, merger, consolidation,
statutory share exchange or similar form of transaction involving the Company or a
subsidiary of the Company (a “Reorganization”), or the sale or other disposition of all or
substantially all of the Company’s assets (a “Sale”) or the acquisition of assets or stock
of another entity (an “Acquisition”), unless immediately following such Reorganization,
Sale or Acquisition: (A) all or substantially all of the individuals and entities who were
the beneficial owners, respectively, of the outstanding Company Common Stock and
outstanding Company Voting Securities immediately prior to such Reorganization, Sale or
Acquisition beneficially own, directly or indirectly, more than 50% of, respectively, the
then outstanding shares of common stock and the combined voting power of the then
outstanding voting securities entitled to vote generally in the election of directors, as
the case may be, of the entity resulting from or surviving such Reorganization, Sale or
Acquisition (including, without limitation, an entity which as a result of such transaction
owns the Company or all or substantially all of the Company’s assets or stock either
directly or through one or more subsidiary entities, the “Surviving Entity”) in
substantially the same
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proportions as their ownership, immediately prior to such Reorganization, Sale or
Acquisition, of the outstanding Company Common Stock and the outstanding Company Voting
Securities, as the case may be, and (B) no person (other than (x) the Company or any
subsidiary of the Company, (y) the Surviving Entity or its ultimate parent entity, or (z)
any employee benefit plan (or related trust) sponsored or maintained by any of the
foregoing) is the beneficial owner, directly or indirectly, of 50% or more of the total
common stock or 50% or more of the total voting power of the outstanding voting securities
eligible to elect directors of the Surviving Entity, and (C) at least a majority of the
members of the board of directors of the Surviving Entity were Incumbent Directors at the
time of the Board’s approval of the execution of the initial agreement providing for such
Reorganization, Sale or Acquisition (any Reorganization, Sale or Acquisition which
satisfies all of the criteria specified in (A), (B) and (C) above shall be deemed to be a
“Non-Qualifying Transaction”); or
(4) approval by the stockholders of the Company of a complete liquidation or
dissolution of the Company.
SECTION 5. OBLIGATIONS OF THE COMPANY UPON TERMINATION
(a) Termination for Death, Disability, Cause or Expiration of Term. If Executive’s
employment terminates because of the Executive’s death or Disability or the expiration of the Term
of this Employment Agreement, or if the Company terminates the Executive’s employment for Cause,
the Company’s only obligation under this Employment Agreement shall be to pay Executive, or, if
Executive dies, Executive’s estate, any earned but unpaid Base Salary then in effect under Section
3(a), through Executive’s Date of Termination; provided that Executive shall have such rights under
the Company’s benefit plans as are provided in such plans.
(b) Executive’s Voluntary Termination Without Good Reason. If the Executive resigns
his employment without Good Reason, the Company’s only obligation under this Employment Agreement
shall be to pay Executive any earned but unpaid Base Salary then in effect under Section 3(a),
through Executive’s Date of Termination; provided that Executive shall have such rights under the
Company’s benefit plans as are provided in such plans.
(c) Termination by Company Without Cause; Termination by Executive For Good Reason.
If the Company terminates Executive’s employment other than for Cause, death or Disability or if
Executive resigns for Good Reason, the Company shall (in lieu of any severance benefits under any
Company severance program) pay or provide to Executive compensation and benefits as follows:
(1) Executive will continue to receive his Base Salary as then in effect through his
Date of Termination.
(2) Executive shall receive, no later than 30 days after Executive’s Date of
Termination, a lump sum payment equal to (i) Executive’s monthly Base
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Salary plus 1/12 of Executive’s target annual bonus for the year in which Executive’s
Date of Termination occurs, calculated as if all target financial and other performance
goals were attained, multiplied by (ii) the number of months in the Severance Period. The
“Severance Period” shall be the period commencing on the Date of Termination and extending
the greater of 12 months or the remaining Term of the Employment Agreement.
The lump sum payment under this paragraph (2) shall not alter the amounts Executive is
entitled to receive under the benefit plans described in paragraph (3) below. Benefits
under such plans shall be determined as if Executive had continued to receive his Base
Salary over the applicable Severance Period rather than in a lump sum.
(3) The group health and dental care (including any executive medical plan) and group
term life insurance benefits coverages provided to Executive at his Date of Termination
shall be continued at the same level as for active executives and in the same manner as if
his employment under this Employment Agreement had not terminated, beginning on the Date of
Termination and continuing for the Severance Period. Any additional coverages Executive
had at termination, including dependent coverage, will also be continued for such period on
the same terms, to the extent permitted by the applicable policies or contracts. Any costs
Executive was paying for such coverages at the time of termination shall be paid by
Executive by separate check payable to the Company each month in advance. If the terms of
any benefit plan referred to in this paragraph (3), or the laws applicable to such plan do
not permit continued participation by Executive, then the Company will arrange for other
coverage(s) satisfactory to Executive at the Company’s expense which provides substantially
similar benefits or, at Executive’s election, will pay Executive a lump sum amount equal to
the costs of such coverage(s) for the applicable Severance Period.
For purposes of any individual executive life insurance policy (or policies)
maintained by the Company for Executive, the Company shall continue to pay the premiums for
such policy or policies during the Severance Period.
(4) Executive will become fully vested in all stock options, stock appreciation
rights, restricted stock and restricted stock units held by the Executive as of the
Executive’s Date of Termination. To the extent necessary, this Employment Agreement is
hereby deemed an amendment of any such outstanding stock option or other equity award.
(5) Except as expressly provided herein, all other fringe benefits provided to
Executive as an active employee of the Company (e.g., long-term disability, AD&D, etc.),
shall cease on his Date of Termination (except to the extent Executive has already
qualified for benefits under any such program), provided that any conversion or extension
rights applicable to such benefits shall be made available to Executive at his Date of
Termination or when such coverages otherwise cease.
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(d) Full Settlement; No Obligation to Mitigate. The Company’s obligation to make the
payments provided for in this Employment Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim, recoupment, defense or other claim,
right or action which the Company may have against Executive or others. In no event shall
Executive be obligated to seek other employment or take any other action by way of mitigation of
the amounts payable to Executive under any of the provisions of this Employment Agreement and,
except as explicitly provided herein, such amounts shall not be reduced whether or not Executive
obtains other employment.
SECTION 6. CERTAIN ADDITIONAL PAYMENTS BY THE COMPANY.
(a) Anything in this Employment Agreement to the contrary notwithstanding and except as set
forth below, in the event it shall be determined that any payment or distribution by the Company to
or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant
to the terms of this Employment Agreement or otherwise, but determined without regard to any
additional payments required under this Section 6) (a “Payment”) would be subject to the excise tax
imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) or any
interest or penalties are incurred by Executive with respect to such excise tax (such excise tax,
together with any such interest and penalties, are hereinafter collectively referred to as the
“Excise Tax”), then Executive shall be entitled to receive an additional payment (a “Gross-Up
Payment”) in an amount such that after payment by Executive of all taxes (including any interest or
penalties imposed with respect to such taxes), including, without limitation, any income taxes (and
any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up
Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon
the Payments.
(b) Subject to the provisions of Section 6(c), all determinations required to be made under
this Section 6, including whether and when a Gross-Up Payment is required and the amount of such
Gross-Up Payment and the assumptions to be used in arriving at such determination, shall be made by
a certified public accounting firm selected by Executive (other than the Company’s regular
accounting firm) and reasonably acceptable to the Company (the “Accounting Firm”) which shall
provide detailed supporting calculations both to the Company and Executive within 15 business days
of the receipt of notice from Executive that there has been a Payment, or such earlier time as is
reasonably requested by the Company. All fees and expenses of the Accounting Firm shall be borne
solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 6, shall be
paid by the Company to Executive within five days of the receipt of the Accounting Firm’s
determination. Any determination by the Accounting Firm shall be binding upon the Company and
Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the
time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up
Payments which will not have been made by the Company should have been made (“Underpayment”),
consistent with the calculations required to be made hereunder. In the event that the Company
exhausts its remedies pursuant to Section 6(c) and Executive thereafter is required to make a
payment of any Excise Tax, the Accounting Firm shall determine the amount of the
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Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company
to or for the benefit of Executive.
(c) Executive shall notify the Company in writing of any claim by the Internal Revenue Service
that, if successful, would require the payment by the Company of a Gross-Up Payment (or an
additional Gross-Up Payment). Such notification shall be given as soon as practicable but no later
than ten business days after Executive is informed in writing of such claim and shall apprise the
Company of the nature of such claim and the date on which such claim is requested to be paid.
Executive shall not pay such claim prior to the expiration of the 30-day period following the date
on which he gives such notice to the Company (or such shorter period ending on the date that any
payment of taxes with respect to such claim is due). If the Company notifies Executive in writing
prior to the expiration of such period that it desires to contest such claim, Executive shall:
(1) give the Company any information reasonably requested by the Company relating to
such claim,
(2) take such action in connection with contesting such claim as the Company shall
reasonably request in writing from time to time, including, without limitation, accepting
legal representation with respect to such claim by an attorney reasonably selected by the
Company,
(3) cooperate with the Company in good faith in order effectively to contest such
claim, and
(4) permit the Company to participate in any proceedings relating to such claim;
provided, however, that the Company shall bear and pay directly all costs and expenses
(including additional interest and penalties) incurred in connection with such contest and shall
indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or income tax
(including interest and penalties with respect thereto) imposed as a result of such representation
and payment of costs and expenses. Without limitation of the foregoing provisions of this Section
6(c), the Company shall control all proceedings taken in connection with such contest (to the
extent applicable to the Excise Tax and the Gross-Up Payment) and, at its sole option, may pursue
or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing
authority in respect of such claim and may, at its sole option, either direct Executive to pay the
tax claimed and xxx for a refund or contest the claim in any permissible manner, and Executive
agrees to prosecute such contest to a determination before any administrative tribunal, in a court
of initial jurisdiction and in one or more appellate courts, as the Company shall determine;
provided, however, that if the Company directs Executive to pay such claim and xxx for a refund,
the Company shall, if permitted by law, advance the amount of such payment to Executive, on an
interest-free basis and shall indemnify and hold Executive harmless, on an after-tax basis, from
any Excise Tax or income tax (including interest or penalties with respect thereto) imposed with
respect to such
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advance or with respect to any imputed income with respect to such advance; and further
provided that any extension of the statute of limitations relating to payment of taxes for the
taxable year of Executive with respect to which such contested amount is claimed to be due is
limited solely to such contested amount. Furthermore, the Company’s control of the contest shall
be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and
Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the
Internal Revenue Service or any other taxing authority.
(d) If, after the receipt by Executive of an amount advanced by the Company pursuant to
Section 6(c), Executive becomes entitled to receive any refund with respect to such claim,
Executive shall (subject to the Company’s complying with the requirements of Section 6(c) promptly
pay to the Company the amount of such refund (together with any interest paid or credited thereon
after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by the
Company pursuant to Section 6(c), a determination is made that Executive shall not be entitled to
any refund with respect to such claim and the Company does not notify Executive in writing of its
intent to contest such denial of refund prior to the expiration of 30 days after such
determination, then such advance shall be forgiven and shall not be required to be repaid and the
amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required
to be paid.
SECTION 7. COVENANTS BY EXECUTIVE.
(a) General. Executive and the Company understand and agree that the purpose of the
provisions of this Section 7 is to protect legitimate business interests of the Company, as more
fully described below, and is not intended in an unreasonable manner to impair or infringe upon
Executive’s right to work or earn a living after termination or expiration of this Employment
Agreement. Executive hereby acknowledges that Executive has received and will continue to receive
good and valuable consideration for the restrictions set forth in this Section 7 in the form of the
compensation and benefits provided for herein as well as other consideration. Therefore, Executive
shall be subject to the restrictions set forth in this Section 7.
(b) Definitions. The following capitalized terms used in this Section 7 shall have
the meanings assigned to them below, which definitions shall apply to both the singular and plural
forms of such terms:
(1) “Competitive Services” means the business of providing intelligent visual medical
systems, and providing enterprise-level information technology solutions for the clinical
analysis and management of digital medical images. A “Company Competitor” is a Person that
sells, licenses or otherwise offers Competitive Services to its customers, clients or end
users.
(2) “Person” means any individual or any corporation, partnership, joint venture,
limited liability company, association or other entity or enterprise.
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(3) “Principal or Representative” means a principal, owner, partner, stockholder,
joint venturer, investor, lender, member, trustee, director, advisor, officer, manager,
employee, agent, representative or consultant.
(4) “Protected Customers” mean customers of the Company within the United States or
prospective customers of the Company within the United States that have been actively
solicited by the Company. After Executive’s Date of Termination, Protected Customers shall
include only those customers and prospective customers of the Company with whom Executive
had material contact during his employment with the Company (with “material contact”
meaning direct personal contact or direct supervisory contact with other employees or
personnel of the Company who in turn had direct personal contact with the prospective
customers), or about whom Executive learned or had ready access to Confidential
Information, during the one year period immediately prior to the Date of Termination of the
Executive.
(5) “Restricted Period” means the period of time beginning on the Effective Date and
ending on the later of the date that is (a) twelve months after Executive’s Date of
Termination or (b) the last day of the Severance Period (as such term is defined in Section
5(c)(2)).
(c) The Company’s Property.
(1) Upon the termination of Executive’s employment for any reason or, if earlier, upon
the Company’s request, Executive shall promptly return all “Property” which had been
entrusted or made available to Executive by the Company.
(2) The term “Property” means all records, files, memoranda, reports, price lists,
customer lists, drawings, plans, sketches, keys, codes, computer hardware and software and
other property of any kind or description prepared, used or possessed by Executive during
Executive’s employment by the Company and, if applicable, any of its affiliates (and any
duplicates of any such property) together with any and all information, ideas, concepts,
discoveries, and inventions and the like conceived, made, developed or acquired at any time
by Executive individually or, with others during Executive’s employment which relate to the
Company business, products or services.
(d) Trade Secrets.
(1) Executive agrees that Executive will hold in a fiduciary capacity for the benefit
of the Company, and any of its affiliates, and will not directly or indirectly use or
disclose, any “Trade Secret” that Executive may have acquired during the term of
Executive’s employment by the Company or any of its affiliates for so long as such
information remains a Trade Secret.
(2) The term “Trade Secret” means information, including, but not limited to,
technical or nontechnical data, formulas, patterns, compilations,
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programs, devices, methods, techniques, drawings, processes, financial data, financial
plans, product plans, or a list of actual or potential customers or suppliers that (a)
derives economic value, actual or potential, from not being generally known to, and not
being generally readily ascertainable by proper means by any other person who can obtain
economic value from its disclosure or use and (b) is the subject of reasonable efforts by
the Company and any of its affiliates to maintain its secrecy.
(3) This Section 7(d) and Section 7(e) are intended to provide rights to the Company
which are in addition to, and not in lieu of, those rights the Company has under the common
law or applicable statutes for the protection of Trade Secrets. Any provision under
applicable trade secret law that provides the Company with more liberal or generous
protection of its Trade Secrets shall prevail over any narrower protection afforded by this
Agreement.
(e) Confidential Information.
(1) Executive, while employed under this Employment Agreement and thereafter during
the Restricted Period, shall hold in a fiduciary capacity for the benefit of the Company
and any of its affiliates, and shall not directly or indirectly use or disclose, any
“Confidential Information” that Executive may have acquired (whether or not developed or
compiled by Executive and whether or not Executive is authorized to have access to such
information) during the term of, and in the course of, or as a result of Executive’s
employment by the Company or any of its affiliates. Notwithstanding anything to the
contrary in this Agreement, the foregoing durational limitation shall not apply to any
Confidential Information that constitutes a “Trade Secret” and Executive’s obligation to
hold in confidence and not use such Trade Secret Confidential Information shall continue
for as long as the information retains its status as a Trade Secret.
(2) The term “Confidential Information” means any secret, confidential or proprietary
information possessed by the Company or any of its affiliates relating to their business,
including, without limitation, Trade Secrets, customer lists, details of client or
consultant contracts, current and anticipated customer requirements, pricing policies,
price lists, market studies, business plans, operational methods, marketing plans or
strategies, legal advice and communications with the Company’s counsel, product development
techniques or flaws, computer software programs (including object code and source code),
data and documentation data, base technologies, systems, structures and architectures,
inventions and ideas, past current and planned research and development, compilations,
devices, methods, techniques, processes, financial information and data, business
acquisition plans and new personal acquisition plans (not otherwise included in the
definition of a Trade Secret under this Employment Agreement) that has not become generally
available to the public by the act of one who has the right to disclose such information
without violating any right of the Company or any of its affiliates. Confidential
Information may include, but not be limited to, future business plans, licensing
strategies, advertising campaigns, information
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regarding customers, executives and independent contractors and the terms and
conditions of this Employment Agreement.
(f) Non-Solicitation of Employees. Executive (i) while employed under this Employment
Agreement shall not, either directly or indirectly, solicit or attempt to induce any other officer,
employee or independent contractor of the Company or any of its affiliates to terminate his or her
employment or other relationship with the Company or any of its affiliates and shall not assist any
other person or entity in such a solicitation (regardless of whether any such officer, employee or
independent contractor would commit a breach of contract by terminating his employment), and (ii)
during that part of the Restricted Period following Executive’s Date of Termination, shall not,
either directly or indirectly, solicit or attempt to induce any other officer, employee or
independent contractor of the Company or any of its affiliates with whom Executive had contact,
knowledge of, or association in the course of Executive’s employment with the Company or any of its
affiliates as the case may be, during the twelve month period immediately preceding the beginning
of the Restricted Period, to terminate his or her employment or other relationship with the Company
or any of its affiliates and shall not assist any other person or entity in such a solicitation
(regardless of whether any such officer, employee or independent contractor would commit a breach
of contract by terminating his employment).
(g) Non-Solicitation of Customers. Executive understands and agrees that the
relationship between the Company and each of its “Protected Customers” constitutes a valuable asset
of the Company and may not be converted to Executive’s own use and that any such actions by
Executive would constitute a material breach of this Employment Agreement as well as a breach of
Executive’s duties of loyalty to the Company as a senior executive officer. Accordingly, Executive
hereby agrees that, during the Restricted Period, Executive shall not, without the prior written
consent of the Company, directly or indirectly, on Executive’s own behalf or as a Principal or
Representative of any Person, solicit or attempt to solicit a Protected Customer for the purpose of
providing or selling or having a Company Competitor provide Competitive Services to the Protected
Customer.
(h) Non-Competition. During the Term and during the Restricted Period, Executive
shall not, without the Company’s express prior written consent, directly or indirectly, on
Executive’s own behalf or as a Principal or Representative of any Person other than the Company or
an affiliate of the Company provide services to, invest in, lend funds to, advise, consult with,
represent, be employed by or contract with a Company Competitor where such relationship involves
substantial similarity to one or more material aspects of Executive’s relationship with Company and
where it could reasonably be concluded that such relationship is adverse to the legitimate business
interests of the Company or Executive’s contractual commitments to and corporate duties of loyalty
to the Company (a “Competing Position”). After Executive’s Date of Termination, the foregoing
restrictions shall apply only to affiliations or relationships with a Company Competitor whose
primary business location is in the continental United States. The parties acknowledge that the
Company’s business extends throughout and beyond the continental United States and that as the
Company’s Chief Operating Officer, Executive
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can be deemed to be providing services to the Company and serving the Company throughout this
entire geographic area. Nothing in the foregoing covenants shall prevent or limit Executive from
owning a passive interest of not more than one percent (1%) of the equity of a Company Competitor
if the equity is listed and traded on the New York Stock Exchange or NASDAQ provided that neither
such ownership nor any contract or other right gives Executive control of the entity in which
Executive owns equity.
(i) Non-Disparagement. The Executive agrees not to make false, misleading or
disparaging statements regarding the Company, its management (including individual executives or
managers) or practices, and agrees not to take any action that disrupts or impairs the Company’s
normal, ongoing business operations, or that xxxxx the Company’s reputation with its employees,
customers, suppliers, or the public. Executive understands that the foregoing provision does not
apply on occasions when Executive is subpoenaed or ordered by a court or other governmental
authority to testify or give evidence and must, of course, respond truthfully, or to conduct
otherwise protected by the Xxxxxxxx-Xxxxx Act.
(j) Reasonable and Continuing Obligations. Executive agrees that Executive’s
obligations under this Section 7 are obligations which will continue beyond the date Executive’s
employment terminates and that such obligations are reasonable and necessary to protect the
Company’s legitimate business interests. The Company in addition shall have the right to take such
other action as the Company deems necessary or appropriate to compel compliance with the provisions
of this Section 7.
(k) Remedy for Breach. Executive agrees that the remedies at law of the Company for
any actual or threatened breach by Executive of the covenants in this Section 7 would be inadequate
and that the Company shall be entitled to seek specific performance of the covenants in this
Section 7, including entry of an ex-parte , temporary restraining order in state or federal court,
preliminary and permanent injunctive relief against activities in violation of this Section 7, or
both, or other appropriate judicial remedy, writ or order, in addition to any damages and legal
expenses which the Company may be legally entitled to recover. Executive acknowledges and agrees
that the covenants in this Section 7 shall be construed as agreements independent of any other
provision of this or any other agreement between the Company and Executive, and that the existence
of any claim or cause of action by Executive against the Company, whether predicated upon this
Employment Agreement or any other agreement, shall not constitute a defense to the enforcement by
the Company of such covenants.
(l) Severability of Covenants. Executive acknowledges and agrees that the Restrictive
Covenants are reasonable and valid in time and scope and in all other respects. The covenants set
forth in this Employment Agreement shall be considered and construed as separate and independent
covenants. Should any part or provision of any covenant be held invalid, void or unenforceable,
such invalidity, voidness or unenforceability shall not render invalid, void or unenforceable any
other part or provision of this Employment Agreement. If any portion of the foregoing provisions
is found to be invalid or unenforceable because its duration, the territory, the definition of
activities or the definition of information covered is considered to be invalid or
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unreasonable in scope, the invalid or unreasonable term shall be redefined, or a new
enforceable term provided, such that the intent of the Company and Executive in agreeing to the
provisions of this Employment Agreement will not be impaired and the provision in question shall be
enforceable to the fullest extent of the applicable laws.
(m) Reformation. The parties hereunder agree that it is their intention that the
provisions of this Section 7 be enforced in accordance with their terms to the maximum extent
possible under applicable law. The parties further agree that, in the event any tribunal of
competent jurisdiction shall find that any provision hereof is not enforceable in accordance with
its terms, the tribunal shall reform these covenants such that they shall be enforceable to the
maximum extent permissible at law.
SECTION 8. MISCELLANEOUS
(a) Non-Exclusivity of Rights. Nothing in this Employment Agreement shall prevent or
limit Executive’s continuing or future participation in any employee benefit plan, program, policy
or practice provided by the Company and for which Executive may qualify, except as specifically
provided herein. Amounts which are vested benefits or which Executive is otherwise entitled to
receive under any employee benefit plan, policy, practice or program of the Company, its
subsidiaries or any of its affiliated companies at or subsequent to the Date of Termination (other
than severance benefits) shall be payable in accordance with such plan, policy, practice or program
except as explicitly modified by this Employment Agreement.
(b) Notices. Notices and all other communications shall be in writing and shall be
deemed to have been duly given when personally delivered or when mailed by United States registered
or certified mail. Notices to the Company shall be sent to: Emageon Inc., 0000 Xxxxxxxxx Xxxxx,
Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000. Attention: Corporate Secretary. Notices and communications
to Executive shall be sent to the address Executive most recently provided to the Company.
(c) No Waiver. No failure by either the Company or Executive at any time to give
notice of any breach by the other of, or to require compliance with, any condition or provision of
this Employment Agreement shall be deemed a waiver of any provisions or conditions of this
Employment Agreement.
(d) Alabama Law. This Employment Agreement shall be governed by Alabama law without
reference to the choice of law principles thereof.
(e) Assignment. This Employment Agreement shall be binding upon and inure to the
benefit of the Company and any successor to all or substantially all of the business or assets of
the Company. The Company may assign this Employment Agreement to any affiliate or successor, and
no such assignment shall be treated as a termination of Executive’s employment under this
Employment Agreement. Executive’s rights and obligations under this Employment Agreement are
personal and shall not be assigned or transferred.
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(f) Other Agreements. This Employment Agreement supercedes, replaces and merges any
and all previous agreements and understandings regarding all the terms and conditions of
Executive’s employment relationship with the Company, and this Employment Agreement constitutes the
entire agreement between the Company and Executive with respect to such terms and conditions.
(g) Amendment. No amendment to this Employment Agreement shall be effective unless it
is in writing and signed by the Company and by Executive.
(h) Invalidity. If any part of this Employment Agreement is held by a court of
competent jurisdiction to be invalid or otherwise unenforceable, the remaining part shall be
unaffected and shall continue in full force and effect, and the invalid or otherwise unenforceable
part shall be deemed not to be part of this Employment Agreement.
(i) Disputes; Legal Fees; Indemnification.
(1) Disputes — All claims by Executive for compensation and benefits under
this Employment Agreement shall be in writing and shall be directed to and be determined by
the Board. Any denial by the Board of a claim for benefits under this Employment Agreement
shall be provided in writing to Executive within 30 days of such decision and shall set
forth the specific reasons for the denial and the specific provisions of this Employment
Agreement relied upon. The Board shall afford a reasonable opportunity to Executive for a
review of its decision denying a claim and shall further allow Executive to appeal in
writing to the Board a decision of the Board within sixty (60) days after notification by
the Board that Executive’s claim has been denied. To the extent permitted by applicable
law, any further dispute or controversy arising under or in connection with this Employment
Agreement shall be settled exclusively by arbitration in Birmingham, Alabama, in accordance
with the commercial arbitration rules of the American Arbitration Association then in
effect. Judgment may be entered on the arbitrator’s award in any court having
jurisdiction.
(2) Legal Fees. If Executive terminates his employment for Good Reason or if
the Company involuntarily terminates Executive without Cause, then, in the event Executive
incurs legal fees and other expenses in seeking to obtain or to enforce any rights or
benefits provided by this Employment Agreement and is successful, in whole or in any
significant part, in obtaining or enforcing any such rights or benefits through settlement,
mediation, arbitration or otherwise, the Company shall promptly pay Executive’s reasonable
legal fees and expenses and related costs incurred in enforcing this Employment Agreement
including, without limitation, attorneys fees and expenses, experts fees and expenses,
investigative fees, and travel expenses. Except to the extent provided in the preceding
sentence, each party shall pay its own legal fees and other expenses associated with any
dispute under this Employment Agreement.
(3) Indemnification. During the Term of this Employment Agreement and after
Executive’s termination, the Company shall indemnify Executive and
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hold Executive harmless from and against any claim, loss or cause of action arising
from or out of Executive’s performance as an officer, director or employee of the Company
or any of its subsidiaries or other affiliates or in any other capacity, including any
fiduciary capacity, in which Executive serves at the Company’s request, in each case to the
maximum extent permitted by law and under the Company’s Articles of Incorporation and
By-Laws (the “Governing Documents”), provided that in no event shall the protection
afforded to Executive hereunder be less than that afforded under the Governing Documents as
in effect on the date of this Employment Agreement except for changes mandated by law.
IN WITNESS WHEREOF, the Company and Executive have executed this Employment Agreement as of
the date first above written to be effective on the Effective Date.
| EMAGEON INC. | ||||||
| By: | /s/ Xxxxxxx X. Xxxx, Xx. | |||||
| Name: Xxxxxxx X. Xxxx, Xx. | ||||||
| Title: Chief Executive Officer | ||||||
| EXECUTIVE | ||||||
| /s/ Xxxxx Xxxxx | ||||||
| XXXXX XXXXX | ||||||
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