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EXHIBIT 10.6(b)
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") by and between InfoCure Corporation,
a Delaware corporation ("Company"), and Xxxxxxxxx X. Fine ("Executive"), is
hereby entered into as of the 10th day of November, 2000 (the "Effective Date").
WHEREAS, Company is engaged in the business of providing practice management
software products and related services that address the needs of health care
providers to manage and communicate administrative, practice management and
clinical applications designed to meet the information requirements of medical
specialties and office-based health care practices in the United States (the
"Business"); and
WHEREAS, Executive desires to be employed by Company at its offices in Atlanta,
Georgia and Company desires to employ and assure itself of the continued
services of Executive on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises, terms, covenants and
conditions set forth herein and the performance of each, it is hereby agreed as
follows:
1. Employment and Duties.
A. Company shall employ Executive as President and Chief
Executive Officer during the term of his employment as set forth in this
Agreement and Executive hereby accepts such employment. Executive shall perform
the responsibilities of a President and Chief Executive Officer and such
additional executive duties and responsibilities commensurate with his position.
The Executive shall not be required to maintain his principal office other than
in the Atlanta, Georgia metropolitan area.
The parties acknowledge that it is currently the intention of the Company to
spin-off its "PracticeWorks" subsidiary by means of a pro rata dividend of all
of the Company's "interests" in PracticeWorks to the stockholders of the Company
(such transaction being hereinafter referred to as the "Spin-Off"). If and when
the Company completes the Spin-Off, the Executive shall be appointed Chairman of
the Board of Directors of the Company and the Executive shall resign his
position as President and Chief Executive Officer of the Company.
B. The Executive shall devote approximately forty (40) hours per
week to the performance of his duties hereunder. Neither the foregoing nor any
other provision of this Agreement is intended or shall be construed as
preventing Executive from devoting his time and effort to charitable, community
activities and other business non-competitive to the Business, including but not
limited to as a board member or senior advisor, provided that such involvement
with such activities does not materially interfere with the performance of his
duties under this Agreement. Additionally, the Company shall furnish the
Executive with appropriate office facilities and support personnel as the
Executive deems necessary for the performance of his duties under this
Agreement, in any case, not to exceed $225,000 per calendar year.
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2. Compensation and Benefits.
A. Base Salary. During the Term (as defined below), Company shall
pay to Executive a base salary ("Base Salary") of Two Hundred Fifty Thousand
Dollars ($250,000) per year, payable in arrears in accordance with the Company's
standard payroll practices for senior executives (but in no event less
frequently than in equal semi-monthly payments). During the Term, the Base
Salary shall be reviewed at least annually and shall be increased (but not
decreased) from time to time, but not less than annually, as determined by the
Compensation Committee of the Board of Directors, after consultation with the
Executive. Any increase in Base Salary shall not limit or reduce any other
obligation of the Company to the Executive under this Agreement.
B. Annual Bonus. The Company shall pay to Executive an annual
cash bonus ("Annual Bonus") identical to that which is awarded to the President
and/or Chief Executive Officer.
C. Most Favored Nations: Additional Employee Benefits, Bonus and
Incentive Compensation. During the Term (as defined below), Executive shall be
entitled to participate in all employee benefit programs and policies provided
by the Company, including, without limitation, deferred compensation plans;
equity-based compensation; severance; and medical, dental, accidental death,
life, travel, accident and short and long term disability insurance plans.
Executive's participation shall be at the highest benefit level offered to any
other senior executive of the Company. Executive shall also be entitled during
the Term to the highest bonus compensation and incentive compensation, including
without limitation stock options and other stock and equity-based compensation,
as provided to any other senior executive of the Company.
D. Vacation and Sabbatical Leave. Executive shall accrue six (6)
weeks of vacation during each calendar year during the Term of this Agreement
(with such vacation time pro-rated for 2000). Vacation time shall be taken at
such time as not to materially interfere with the Business of Company. Any
unused vacation time may be carried forward from year to year. Additionally, the
Executive will be allowed one four month period ("Sabbatical Leave") for every
five years of employment with the Company or any predecessor company of the
Company, in which the Executive may take leave from his duties under this
Agreement. The Company shall not be obligated to pay the Executive his Base
Salary during the Executive's Sabbatical Leave.
E. Business Expenses. The Executive shall be entitled to be
reimbursed promptly for reasonable business expenses incurred by him in
connection with his services hereunder in accordance with the Company's policies
and procedures for its senior executives. Additionally, the Executive shall be
entitled to an expense allowance of Five Hundred and No/100 Dollars ($500.00)
per month under a non-accountable plan (as defined in Treas. Reg. 1.62-2(c)(3)),
and shall be included in the Executive's income.
F. Auto Allowance. Executive shall receive a $1,000/per month
automobile allowance from the Company, payable monthly, or the use of a company
owned vehicle.
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G. Indemnification. Executive shall be indemnified and held
harmless by the Company to the greatest extent permitted under Delaware law as
the same now exists or may hereafter be amended (but, in the case of any such
amendment, only to the extent that such amendment permits the Company to provide
broader indemnification than was permitted prior to such amendment) and under
the Company's by-laws as such exist on the Effective Date, if Executive is or
was made, or is threatened to be made, a party to any pending, completed or
threatened action, suit, arbitration, alternative dispute resolution mechanism,
investigation, administrative hearing or any other proceeding whether civil,
criminal, administrative or investigative, and whether formal or informal, by
reason of the fact that Executive is or was, or had agreed to become, a
director, officer, employee, agent, or fiduciary of the Company or any other
entity which Executive is or was serving at the request of the Company
("Proceeding"). Such indemnification shall be against all expenses (including
all reasonable attorneys' fees (including any fees for separate counsel so
chosen by the Executive), retainers, court costs, transcripts, fees of experts,
witness fees, travel expenses, duplicating costs, printing and binding costs,
telephone charges, postage, delivery service fees, and all other reasonable
disbursements or expenses customarily required in connection with asserting or
defending claims) ("Expenses") and all claims, damages, liabilities and losses
(including judgments, fines, and liabilities under the Internal Revenue Code or
the Employee Retirement Income Security Act of 1974, as amended, for damages,
excise taxes or penalties; damages, fines or penalties arising out of violation
of any law related to the protection of the public health, welfare or the
environment; and amounts paid or to be paid in settlement) incurred or suffered
by Executive or to which Executive may become subject for any reason.
(i) Advancement of Expenses and Costs. All
Expenses incurred by or on behalf of Executive in defending or
otherwise being involved in a Proceeding shall be paid by Company in
advance of the final disposition of a Proceeding, including any appeal
therefrom, within 30 days after the receipt by the Company of a
statement or statements from Executive requesting such advance or
advances from time to time. Such statement or statements shall evidence
the Expenses incurred by Executive in connecting therewith, together
with supporting invoices, receipts and other documentation.
(ii) Effect of Certain Proceedings. The
termination of any Proceeding by judgment, order, settlement or
conviction, or upon a plea of nolo contendere or its equivalent,
except, in each case, to the extent that the terms thereof expressly so
provide, shall not, of itself (i) adversely affect the rights of
Executive to indemnification, or (ii) create a presumption that
Executive did not meet any particular standard of conduct or have any
particular belief or that a court has determined that indemnification
or contribution is not permitted by applicable law.
(iii) Other Rights to Indemnification. Executive's
rights of indemnification and advancement of Expenses provided by this
Section 2G shall not be deemed exclusive of any other rights to which
Executive may now or in the future be entitled under applicable law,
the certificate of incorporation, by-laws,
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agreement, vote of stockholders, or resolution of the Board, or other
provisions of this Agreement or any other agreement, or otherwise.
(iv) Representations. The Company represents and
warrants that this Section 2G does not conflict with or violate its
certificate of incorporation or by-laws, and agrees that it will not
amend its certificate of incorporation or by-laws in a manner that
would limit the rights of Executive hereunder. The Company represents
that the execution, delivery and performance of this Agreement has been
duly and validly authorized by the Board.
(v) Survival of Indemnity. Notwithstanding
anything in this Agreement to the contrary, this Section 2.G shall
survive any termination of the relationship of Executive with the
Company and shall be binding on, and inure to the benefit of the
successors and assigns of the Company and the successors, assigns,
heirs and personal representatives of Executive.
(vi) The Company agrees to maintain appropriate
Directors' and Officers' Liability Insurance.
H. Option Grants.
(i) On August 21, 2000, the Company granted to
the Executive incentive stock options for the purchase of 1,200,000
shares of the Common Stock, $0.001 par value per share, of the Company
("Common Stock") at a per share exercise price equal to the closing
price per share of Common Stock as reported on the Nasdaq National
Market on August 21, 2000. Such options shall (i) vest during a
36-month period, in 12 equal quarterly installments commencing on the
three-month anniversary of the Effective Date, provided, however, that
(a) the vesting of options to purchase 600,000 shares of Common Stock
shall be accelerated and become fully exerciseable on the first day
after the date on which the average closing price of the Common Stock
for 20 consecutive trading days, as reported on the Nasdaq National
Market, is greater than or equal to $8.88 per share (with the remaining
unvested shares, if any, continuing to vest and become exerciseable on
their original, 36-month, vesting schedule) and (b) the vesting of the
balance of such options to purchase shares of Common Stock shall be
accelerated and become fully exerciseable on the first day after the
date on which the average closing price of the Common Stock for 20
consecutive trading days, as reported on the Nasdaq National Market, is
greater than or equal to $13.32 per share, (ii) be on terms no less
favorable to the Executive than those provided to any other senior
executive of the Company, and (iii) otherwise be in the form attached
hereto as Exhibit A.
(ii) During the Term of this Agreement, the
Company shall, no less frequently than semi-annually, grant or issue to
the Executive additional stock options or shares of Common Stock such
that, when taken together with all other shares of Common Stock then
held by the Executive or subject to issuance under other stock options
then held by the Executive, the Executive owns or has the
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right to purchase a number of shares of Common Stock which is not less
than 3% of the total number of then outstanding shares of Common Stock
(on an as converted basis). Any stock options granted to the Executive
pursuant to this paragraph shall have an exercise price no greater than
the fair market value per share of Common Stock on the date of grant.
Any stock options or shares of Common Stock granted or issued to the
Executive pursuant to this paragraph shall be on terms no less
favorable to the Executive than those provided to any other senior
executive of the Company.
(iii) The treatment and/or conversion of the
Executive's incentive stock options upon Spin-Off shall be on terms no
less favorable to the Executive than those provided to any other senior
executive of the Company.
3. Term. The term of employment of Executive under this Agreement shall be
for a period of four (4) years and any extensions thereof commencing on the
Effective Date hereof and ending on the fourth (4th) anniversary thereof,
subject to earlier termination as provided in Section 4; provided, however, that
at the end of such four (4) year period and each anniversary date thereafter,
the term of this Agreement will automatically be extended for an additional year
unless, not later than six (6) months prior to the end of such four (4) year
period or one (1) year extension period, as the case may be, the Company or the
Executive shall have given notice that it or he elects not to have the term
extended. The term of this Agreement as extended and defined by this section
shall be referred to as the "Term."
4. Early Termination.
A. For Cause.
(i) Notwithstanding the foregoing, Company may
terminate the employment of Executive "for cause" (as hereinafter
defined) at any time upon written notice effective immediately. For
purposes of this Agreement, "Cause" shall mean that, prior to any
termination pursuant to this Section 4.A., Executive shall have
committed:
(1) An intentional act or acts of
fraud, embezzlement or theft constituting a felony and resulting or
intended to result directly in gain or personal enrichment for
Executive at the expense of the Company; or
(2) The continued, repeated,
intentional and willful refusal to perform the duties associated with
Executive's position with the Company, which is not cured within thirty
(30) days following written notice to Executive by the Company's Board
of Directors.
For purposes of this Agreement, no act or failure to act on the part of
Executive shall be deemed "intentional" if it was due primarily to an
error in judgment or negligence, but shall be deemed "intentional" only
if done or omitted to be done by Executive not in good faith and
without reasonable belief that his action or omission was in the best
interest of the Company.
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Executive shall not be deemed to have been terminated for "Cause"
hereunder unless and until there shall have been delivered to Executive
a copy of a resolution duly adopted by the affirmative vote of not less
than a majority of the Board of Directors of the Company then in office
at a meeting of the Board called and held for such purpose, after
reasonable notice to Executive and an opportunity for Executive,
together with his counsel (if Executive chooses to have counsel present
at such meeting), to be heard before the Board, finding that, in the
good faith opinion of the Board, Executive had committed an act
constituting "Cause" as herein defined and specifying the particulars
thereof in detail. Nothing herein will limit the right of Executive or
his beneficiaries to contest the validity or propriety of any such
determination.
(ii) Upon termination of Executive's employment
for cause, Company shall have no further obligation to pay any
compensation to Executive for periods after the effective date of the
termination for cause, except for Base Salary which accrued as of the
termination date. In addition, the right to exercise any vested stock
option shall terminate on the 180th day following the effective date of
the termination of employment for cause.
B. Change in Control. In the event of a Change in Control (as
hereinafter defined) of Company, and Executive elects, in his sole discretion,
to terminate his employment hereunder as of a date within twelve (12) months
after the Change in Control, Executive shall give Company two (2) weeks prior
written notice of such termination and Executive shall be entitled to receive,
and Company shall pay to the Executive, on the date of the termination of
employment, an amount equal to three (3) times Executive's then yearly Base
Salary and an amount equal to Executive's prorated Annual Bonus. On such
termination date, Executive shall immediately become fully vested in all of
Executive's options, restricted stock grants and/or other forms of equity-based
compensation, and his right to exercise any vested stock option and/or other
form of equity-based compensation shall terminate on the ten (10) year
anniversary following the effective date of the Executive's termination of
employment. For a period of two (2) years after the termination date, the
Company also shall maintain, at its sole expense, all medical and dental
policies and benefits provided to the Executive and his family.
The term "Change in Control" means:
(i) The acquisition by any person, entity or
"group" within the meaning of Sections 13(d)(3) or 14(d)(2) of the
Securities Exchange Act of 1934 ("34 Act") (excluding, for this
purpose, Company, any of subsidiaries, or any employee benefit plan of
Company or any of its subsidiaries) of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the 34 Act) of more than forty
percent (40%) of either the then outstanding shares of common stock of
Company or of the combined voting power of Company's then outstanding
voting securities entitled to vote generally in the election of
directors;
(ii) Individuals who, as of the date hereof,
constitute the board of directors of Company ("Incumbent Board") cease
for any reason to constitute at
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least a majority of the board of directors, provided that any
individual becoming a director subsequent to the date hereof whose
election, or nomination for election by Company's shareholders, was
approved by a vote of at least a majority of the directors then
comprising the Incumbent Board shall be considered as though such
individual is a member of the Incumbent Board; or
(iii) Approval of the shareholders of Company of a
merger, consolidation or other reorganization in each case, with
respect to which persons who were the shareholders of Company and
options immediately prior to such merger, consolidation or other
reorganization, immediately thereafter, do not own more than sixty
percent (60%) of the combined voting power entitled to vote generally
in the election of directors of the merged, consolidated or reorganized
Company's then outstanding voting securities, or of the sale of all or
substantially all of the assets of Company; provided, however, in such
event the Change in Control will be deemed to have occurred immediately
prior to the merger, consolidation or other reorganization.
(iv) Gross-Up Payment. If any of the payments
made to Executive under this Section 4.B ("payments") will be subject
to the tax imposed by Section 4999 of the Internal Revenue Code of
1986, as amended (the "Code") the ("Excise Tax"), (and/or any similar
tax that may be imposed by federal, state or local law), the Company
shall pay to the Executive an additional amount (the "gross-up
payment") equal to the sum of (x) the Excise Tax imposed on the
payments, (y) the Excise Tax imposed on the gross-up payment, and (z)
the federal, state and local income taxes imposed upon the gross-up
payment. The gross-up payment shall be made within 45 days after the
date of termination. For purposes of determining whether any of the
payments will be subject to the Excise Tax and the amount of such
Excise Tax, any other payments or benefits received or to be received
by the Executive in connection with a Change in Control or the
Executive's termination (whether pursuant to the terms of this
Agreement or any other plan, arrangement or agreement with the Company,
any person whose actions result in a Change in Control or any person
affiliated with the Company or such person) shall be treated as
"parachute payments" within the meaning of Section 280G(b)(2) of the
Code, and all "excess parachute payments" within the meaning of Section
280G(b)(1) shall be treated as subject to the Excise Tax, unless in the
opinion of tax counsel selected by the Company and acceptable to the
Executive, such other payments or benefits (in whole or in part) do not
constitute parachute payments, or such excess parachute payments (in
whole or in part) represent reasonable compensation for services
actually rendered within the meaning of Section 280G(b)(4) of the Code,
or are otherwise not subject to the Excise Tax. For purposes of
determining the amount of the gross-up payment, the Executive shall be
deemed to pay federal, state and local income taxes at the highest
marginal rate of federal, state and local income taxation in the
calendar year in which the gross-up payment is to be made in the state
and locality of the Executive's residence on the date of termination,
net of the maximum reduction in federal income taxes which could be
obtained from deduction of any state and local income taxes. In the
event that the Excise Tax is subsequently determined
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to be less than the amount used to calculate the gross-up payment, the
Executive shall repay to the Company at the time that the reduction in
Excise Tax is finally determined the portion of the gross-up payment
attributable to such reduction, plus interest on the amount of such
repayment at the rate provided in Section 7872(f)(2) of the Code. In
the event that the Excise Tax is determined to exceed the amount used
to calculate the gross-up payment (including by reason of any payment
the existence or amount of which cannot be determined at the time of
the gross-up payment), the Company shall make an additional gross-up
payment in respect of such excess (plus any interest payable with
respect to such excess) at the time that the amount of such excess is
finally determined.
C. Termination by Company Without Cause, by Executive after
Constructive Discharge, or Due to Executive's Death or Disability. In the event
(i) Company terminates the employment of the Executive, other than pursuant to
Section 4.A above, prior to the expiration of term of this Agreement as set
forth in Section 3. hereof, (ii) Executive terminates his employment after a
Constructive Discharge (as defined below), or (iii) Executive's employment
terminates due to his death or Total and Permanent Disability (as defined
below), Company shall provide to the Executive or any other assignee as provided
in Section 7 below, the same rights, payments and benefits he would have
received if there had been a Change of Control as set forth in Section 4.B
above.
For purposes of this Agreement, "Constructive Discharge" shall mean any of the
events set forth below which are not cured within fifteen (15) days following
written notice thereof by Executive to Company:
(i) Any reduction in Base Salary;
(ii) A reduction in Executive's job function, duties or
responsibilities, other than as contemplated in this Agreement.
(iii) A required relocation of Executive from the
Metropolitan Atlanta Area;
(iv) Any material breach of any of the terms of this
Agreement by the Company; or
(v) Failure by the Company to effectuate the Spin-Off
within 180 days of the Effective Date.
For purposes of this Agreement, the term "Total and Permanent Disability" shall
mean the suffering by Executive of a Disability for a continuous period in
excess of one hundred eighty (180) days. A Total and Permanent Disability shall
be deemed to commence upon the expiration of such one hundred eighty (180) day
period.
For purposes hereof, the terms "Disabled" or "Disability" shall mean a mental or
physical condition which renders Executive unable or incompetent to carry out
the material job responsibilities, with or without reasonable accommodation,
which such Executive held or the material duties to which Executive was assigned
after the time the disability was
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incurred. A determination of disability shall be made by a physician mutually
agreed upon by the Company and Executive (which agreement neither party shall
unreasonably withhold); provided that if the Executive and the Company cannot
agree on a physician, the Executive and the Company shall each select a
physician and these two shall select a third physician, whose determination as
to disability shall be binding on all parties.
5. No Mitigation Obligation. The Company hereby acknowledges that it will
be difficult and may be impossible (i) for Executive to find reasonably
comparable employment following the date of termination and (ii) to measure the
amount of damages which Executive may suffer as a result of termination of
employment hereunder. Accordingly, the payment of the termination compensation
by the Company to Executive in accordance with the terms of this Agreement is
hereby acknowledged by the Company to be reasonable and will be liquidated
damages, and Executive will not be required to mitigate the amount of any
payment provided for in this Agreement by seeking other employment or otherwise,
nor will any profits, income, earnings or other benefits from any source
whatsoever create any mitigation, offset, reduction or any other obligation on
the part of Executive hereunder or otherwise.
6. Covenants by Executive.
A. Company Property.
(i) Executive upon the termination of Executive's
employment for any reason and upon request shall by the Company, shall promptly
return all "Property" which had been entrusted or made available to Executive by
the Company.
(ii) 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 Company business, products or services.
B. Trade Secrets.
(i) 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 has 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.
(ii) The term "Trade Secret" means information, including,
but not limited to, technical or nontechnical data, a formula, a pattern, a
compilation, a program, a device, a method, a technique, a drawing, a process,
financial data, financial
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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,
other persons who can obtain economic value from its disclosure or use and (b)
is the subject of reasonable efforts by the Company, any of its affiliates and
the Executive, during the Term of this Agreement, to maintain its secrecy.
C. Confidential Information.
(i) Executive while employed under this 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.
(ii) The term "Confidential Information" means any secret,
confidential or proprietary information possessed by the Company or any of its
affiliates relating to their businesses, 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,
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
personnel acquisition plans (not otherwise included in the definition of a Trade
Secret under this Agreement) that has not become generally available to the
public by the act of one, including the Executive during the Term of this
Agreement, who have 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 regarding customers, executives and
independent contractors and the terms and conditions of this Agreement.
D. Restricted Period. The term "Restricted Period" as used in
this Agreement shall mean the twelve month period which starts on the date
Executive's employment terminates with the Company without regard to whether
such termination comes before or after the end of the Term.
E. Nonsolicitation of Customers or Employees.
(i) Executive during the Restricted Period shall not, on
Executive's own behalf or on behalf of any person, firm partnership,
association, corporation or business organization, entity or enterprise, call on
or solicit competing business of customers of the Company or any of its
affiliates with whom Executive within the twelve month period immediately
preceding the beginning of the Restricted
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Period had or made contact with in the course of Executive's employment by the
Company.
(ii) Executive shall not during the six-month period which
starts on the date Executive's employment terminates with the Company either
directly or indirectly, call on, solicit or attempt to induce any other officer
or employee 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 Executive's employment with the Company or any of its affiliates and
shall not assist any other person or entity in such a solicitation.
F. Noncompetition Obligation. Executive shall not during the
Restricted Period and within the States of California, Georgia, Indiana or
Massachusetts organize or form, or acquire a material interest in, or serve as a
member of the executive management team of, or provide consulting concerning the
executive management of, any business which competes directly with any business
which the Company is engaged in, on the date of this Agreement; provided,
however, Executive's ownership of any interest constituting not more than five
percent of the outstanding debt or equity in a corporation shall not be deemed a
"material interest" in competitor if the shares of such corporation are actively
traded on a recognized stock exchange or are traded on an over-the-counter
market even though that corporation may be a direct competitor of the Company.
Executive acknowledges and agrees that the states identified in this section are
states in which Executive performs services for the Company by being actively
engaged as a member of the Company's executive management team in the Company's
operations in these states.
G. No Prior Agreements. Executive hereby represents and warrants
to Company that the execution of this Agreement by Executive and Executive's
employment by Company and the performance of Executive's duties hereunder shall
not violate or be a breach of any agreement with a former employer, client or
any other person or entity.
7. Assignment; Binding Effect. The rights and obligations of the Company
shall inure to the benefit of and shall be binding upon the successors and
assigns of the Company. The rights and obligations of Executive are not
assignable except that the right to receive all rights, payments and benefits
under this Agreement shall inure to the benefit of Executive's spouse, estate,
representatives, heirs, administrators, successors and/or assigns in the event
of the Executive's death (collectively, "third party beneficiaries").
8. Complete Agreement. This Agreement hereby supersedes any other
employment agreements or understandings, written or oral, between Company and
Executive. This written Agreement is the final, complete and exclusive statement
and expression of the agreement between Company and Executive and of all the
terms of this Agreement, and it cannot be varied, contradicted or supplemented
by evidence of any prior or contemporaneous oral or written agreements. This
written Agreement may not be later modified except by a further writing signed
by a duly authorized officer of Company and
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Executive, and no term of this Agreement may be waived except by writing signed
by the party waiving the benefit of such term.
9. Notice. Whenever any notice is required hereunder, it shall be given in
writing addressed as follows:
To Company: InfoCure Corporation
Corporate Headquarters
0000 Xxx Xxxxxxxx
Xxxxxxx, Xxxxxxx 00000
To Executive:
Notice shall be deemed given and effective three (3) days after the deposit in
the U.S. Mail of a writing addressed as above and sent first class mail,
certified, return receipt requested, or when actually received. Either party may
change the address for notice by notifying the other party of such change in
accordance with this Section 9.
10. Severability; Headings. If any portion of this Agreement is held
invalid or inoperative, the other portions of this Agreement shall be deemed
valid and operative and, so far as is reasonable and possible, effect shall be
given to the intent manifested by the portion held invalid or inoperative. This
Agreement shall be enforced separately and independently of any other agreement
involving the parties hereto. The Section headings herein are for reference
purposes only and are not intended in any way to describe, interpret, define or
limit the extent or intent of the Agreement or of any part hereof.
11. Governing Law. This Agreement shall in all respects be construed
according to the laws of the State of Georgia, without regard to conflict of law
principles.
12. Legal Expenses. The Company shall pay the reasonable fees and expenses,
if required, on behalf of the Executive, associated with this Agreement.
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13. Counterparts. This Agreement may be executed simultaneously in two (2)
or more counterparts, each of which shall be deemed an original and all of which
together shall constitute, but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
COMPANY:
InfoCure Corporation
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxxx
Its: Chairman
EXECUTIVE:
/s/ Xxxxxxxxx X. Fine
----------------------------------------------
Xxxxxxxxx X. Fine
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