SENIOR MANAGEMENT AGREEMENT
Exhibit 10.2
[EXECUTION COPY]
THIS SENIOR MANAGEMENT AGREEMENT (this “Agreements” is made as of June 2, 2006, by and
among Aurora Diagnostics Holdings, LLC, a Delaware limited liability company (the
“Company”), Aurora Diagnostics, LLC, a Delaware limited liability company
(“Employer”), and Xxxxx X. New (“Executive”).
WHEREAS, the Company and Executive desire to enter into an agreement pursuant to which
Executive will subscribe for, and the Company will grant to Executive, 4,500 of the Company’s Class
B Units (the “Class B Units”) and Executive will purchase from the Company, and the Company
will sell to Executive, 5,000 of the Company’s Class C Units (the “Class C Units”). All
Class B Units and Class C Units acquired by Executive are referred to herein as “Executive
Securities.” Certain definitions are set forth in Section 9 of this Agreement;
“WHEREAS, the Company, Employer and Executive mutually desire to enter into an agreement
pursuant to which Employer will employ Executive; and
WHEREAS, the execution and delivery of this Agreement by the Company and Executive is a
condition to the purchase of the Company’s Class A Units by Summit Ventures VI-A, L.P., SV VI-B
Aurora Holdings, L.P., Summit VI Advisors Fund, L.P., Summit VI Entrepreneurs Fund, L.P., Summit
Investors VI, L.P., Summit Partners Private Equity Fund VII-A, L.P., and SPPE VII-B Aurora
Holdings, L.P., each a Delaware limited partnership (the “Summit Funds”), and any other
investment fund managed by Summit Partners, L.P., a Delaware limited partnership (“SPLP”),
that at any time executes a counterpart to the Purchase Agreement (as defined below) or otherwise
agrees to be bound thereby (collectively, the “Summit Investors” and each, a “Summit
Investor”), and GSO Special Situations Fund LP, a Delaware limited partnership, and GSO
Sumnostics Holdings (US), Inc., a Delaware corporation (collectively, the “GSO Investors”
and, together with the Summit Investors, the “Investors”), pursuant to a Unit Purchase
Agreement between the Company and the Investors dated as of the date hereof (the “Purchase
Agreement”). Certain provisions of this Agreement are intended for the benefit of, and will be
enforceable by, the Investors.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
to this Agreement hereby agree as follows:
PROVISIONS RELATING TO EXECUTIVE SECURITIES
1. Purchase and Sale of Executive Securities.
(a) Upon execution of this Agreement (the “Closing”), Executive will subscribe for, and the
Company will grant, 4,500 Class B Units (the “Founders Units”) and Executive will purchase,
and the Company will sell, 5,000 Class C Units (the “Co-Invest Units”) at a price of
$6.8376 per Unit, or $34,188.04 in the aggregate. The Company will deliver to Executive a copy of
the certificate(s) representing such Executive Securities and the aggregate purchase price payable
for the Co-Invest Units acquired at the Closing shall be paid by Executive’s delivery to the
Company of (i) a cashier’s or certified check or wire transfer of immediately available funds in an
amount equal to 50% of the aggregate purchase price (i.e., $17,094.02) and (ii) a promissory note
in the form attached hereto as Exhibit A in the face amount of 50% of the aggregate
purchase price (i.e., $17,094.02). Concurrently with the execution of this Agreement, the Company
and Executive shall enter into and execute the Executive Unit Pledge
Agreement in the form of Exhibit B attached hereto (the “Pledge Agreement”) with
respect to the Co-Invest Units. The parties acknowledge and agree that it is contemplated that
Executive shall subsequently sell, transfer and assign up to 2,000 of such Class C Units to Persons
who at the time of such sale, transfer and assignment are employees of the Company or its
Subsidiaries who acquire such Class C Units under the terms of Equity Agreements approved by the
Board; provided that Executive shall sell, transfer and assign up to 2,000 of such Class C
Units as and when reasonably requested by the Board in connection with the hiring of senior
executives of the Company and Employer, subject to the consent of Executive, not to be unreasonably
withheld, conditioned or delayed.
(b) Upon the making of additional capital contributions to the Company from time to time after
the date hereof by the Summit Investors with respect to the Company’s Class A Units held by the
Investors pursuant to Section lB(b) of the Purchase Agreement (each such contribution, a
“Subsequent Closing”), Executive will make additional capital contributions to the Company
with respect to Executive’s Class C Units
in an amount per Unit equal to 50% of the capital contributions per Class A Unit made by the
Summit Investors at such Subsequent Closing (as adjusted from time to time as a result of unit
splits, unit dividends, recapitalizations and similar events and calculated for this purpose net of
any capital contributions by the holders of Class A Units to finance the promissory notes issued
pursuant to the terms of this Agreement or any similar Equity Agreement in connection with the
Class C Units) multiplied by the number of Class C Units issued to Executive at the Closing (with
it being understood that such number shall be reduced to the extent Executive sells, transfers and
assigns a portion of his Class C Units as described above). Any such additional capital
contributions by Executive shall be funded by delivery of (i) a cashier’s or certified check or
wire transfer of immediately available funds in an amount equal to 50% of the aggregate capital
contribution and (ii) a promissory note in the form attached hereto as Exhibit A in the
face amount of 50% of the aggregate capital contribution. Notwithstanding the foregoing, the
maximum aggregate capital contributions that Executive shall be required to make pursuant to this
Section 1(b) shall be $3,750,000 (with it being understood that such aggregate amount shall
be reduced proportionately to as low as $2,250,000 if Executive sells, transfers and assigns 2,000
of his Class C Units as described above), less the aggregate purchase price paid for Executive’s
Class C Units set forth in Section 1(a). Each Subsequent Closing shall take place at the
offices of Xxxxxxxx & Xxxxx LLP, 000 Xxxx Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000 at 10:00 a.m. on
not less than five days prior notice to Executive. This Section 1(b) shall terminate upon
the first to occur of (i) the fifth anniversary of the date hereof, (ii) the consummation of a
Liquidity Event (as defined in the LLC Agreement) and (iii) the consummation of a Public Offering.
(c) Within 30 days after the purchase of the Founders Units and Co-Invest Units hereunder,
Executive will make effective elections with the Internal Revenue Service under Section 83(b) of
the Internal Revenue Code and the regulations promulgated thereunder in the form of Exhibit
C-l and Exhibit C-2 attached hereto. The parties acknowledge and agree that upon the
filing of the foregoing elections, Executive shall be deemed to have complied with the requirements
of Section 3.1(e) of the LLC Agreement.
(d) Until released upon the occurrence of a Liquidity Event or a Public Offering as provided
below, all certificates evidencing any Founders Units that are unvested shall be held by the
Company for the benefit of Executive and the other holder(s) of Executive Securities;
provided, however, that certificates representing the Founders Units shall be
released when all of the Founders Units represented by such certificates are fully vested. Upon the
occurrence of a Liquidity Event or a Public Offering, the Company will return all certificates in
its possession evidencing Executive Securities to the record holders thereof. Upon a Separation,
the Company will return to Executive all certificates in its possession evidencing Vested Founders
Units not otherwise acquired pursuant to the terms of Section 3.
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(e) In connection with the subscription and grant of the Founders Units, and the purchase and
sale of the Co-Invest Units, Executive represents and warrants to the Company that:
(i) The Executive Securities to be acquired by Executive pursuant to this Agreement
will be acquired for Executive’s own account and not with a view to, or intention of,
distribution thereof in violation of the Securities Act, or any applicable state securities
laws, and the Executive Securities will not be disposed of in contravention of the
Securities Act or any applicable state securities laws.
(ii) Executive is an executive officer of the Company and/or Employer, is
sophisticated in financial matters and is able to evaluate the risks and benefits of the
investment in the Executive Securities.
(iii) Executive is an “accredited investor” within the meaning of Rule 501 of
Regulation D of the Securities and Exchange Commission.
(iv) Executive is able to bear the economic risk of his investment in the Executive
Securities for an indefinite period of time because the Executive Securities have not been
registered under the Securities Act and, therefore, cannot be sold unless subsequently
registered under the Securities Act or an exemption from such registration is available.
(v) Executive has had an opportunity to ask questions and receive answers concerning
the terms and conditions of the offering of Executive Securities and has had full access to
such other information concerning the Company as he has requested.
(vi) This Agreement constitutes the legal, valid and binding obligation of Executive,
enforceable in accordance with its terms, and the execution, delivery and performance of
this Agreement by Executive, and Executive’s services for and on behalf of the Company and
its
Subsidiaries, have not, does not and will not conflict with, violate or cause a breach
of any judgment, order or decree to which Executive is subject or, to Executive’s actual
knowledge after reasonable investigation (but without any duty to consult with any prior
employer), any agreement, contract or instrument to which Executive is a party.
(vii) Executive is neither party to, nor bound by, any other employment agreement,
consulting agreement, noncompete agreement, non-solicitation agreement or confidentiality
agreement, other than that certain Amended and Restated Employment Agreement by and between
Ameripath, Inc. and Executive, dated December 8, 2002.
(viii) Executive is a resident of the State of Florida.
(f) As an inducement to the Company to issue the Executive Securities to Executive, and as a
condition thereto, Executive acknowledges and agrees that neither the issuance of the Executive
Securities to Executive nor any provision contained in this Section 1 shall entitle or
require Executive to remain in the employment of the Company, Employer or their respective
Subsidiaries or affect the right of the Company, Employer or their respective Subsidiaries to
terminate Executive’s employment at any time for any reason (but subject to the terms of this
Agreement).
(g) Concurrently with the execution of this Agreement, Executive shall execute in blank ten
security transfer powers in the form of Exhibit D attached hereto (the “Security
Powers”) with respect to the Executive Securities and shall deliver such Security Powers to the
Company. The Security Powers shall authorize the Company to assign, transfer and deliver the
Executive Securities to the appropriate
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acquiror thereof pursuant to and in accordance with the express provisions of Section 3
below or Sections 9.4 or 9.10 of the LLC Agreement and under no other
circumstances. Neither the Company nor any Investor shall have the right to take any action in
connection with any such Security Powers without first giving Executive at least five (5) business
days’ advance written notice describing the specific action to be taken and the timing of the
action that is to be taken.
(h) At the Closing, Executive shall become a party to the LLC Agreement in the capacity of a
Management Investor (as defined in the LLC Agreement). For purposes of Section 3.1(d) of the LLC
Agreement, Executive shall be entitled to preemptive rights with respect to his Executive
Securities following a Separation arising as a result of a termination without Cause or a
resignation with Good Reason (but not if the Separation is for any other reason).
2. Vesting of Founders Units.
(a) Except as otherwise provided in Section 2(b), the Founders Units shall vest
ratably on a monthly basis over the thirty-six (36) month period following the Closing for so long
as Executive remains employed by the Company or any of its Subsidiaries. More specifically,
beginning with the month of May 2006, 2.7778% of the Founders Units granted to Executive hereunder
shall vest on the last day of each calendar month such that executive shall be vested in 100% of
the Founders Units on May 31, 2009.
(b) Upon the occurrence of a Liquidity Event or a Public Offering, all Founders Units which
have not yet become vested shall become vested as of the date of consummation of the Liquidity
Event or Public Offering, if, as of such date, Executive has been continuously employed by the
Company, Employer or any of their Subsidiaries from the date of this Agreement through the
consummation or effectiveness of such Liquidity Event or Public Offering. In addition, all Founders
Units which have not yet become vested shall become vested as of the effective date of a Separation
as a result of a termination without Cause or a resignation with Good Reason.
(c) Founders Units that have become vested are referred to herein as “Vested Founders
Units.” All Founders Units that have not vested are referred to herein as “Unvested
Founders Units.”
3. Repurchase Option.
(a) The Vested Founders Units and the Co-Invest Units (in each case whether held by Executive
or one or more of Executive’s transferees, other than the Company and the Investors) will be
subject to repurchase, in each case by the Company and the Investors under the circumstances and
pursuant to the terms and conditions set forth in this Section 3 (the “Repurchase
Option”). The Company may assign its repurchase
rights set forth in this Section 3 to any Person. In the event of (i) a Separation
resulting from a termination for Cause, all Founders Units (whether vested or unvested and whether
held by Executive or one or more of Executive’s transferees, other than the Company and the
Investors) shall be immediately and permanently forfeited and canceled and shall cease to be
outstanding, and Executive’s rights as a holder of such Units shall automatically and immediately
expire, and (ii) a Separation resulting from a resignation without Good Reason or death or
Disability, all Unvested Founders Units granted to Executive pursuant to this Agreement (whether
held by Executive or one or more of Executive’s transferees, other than the Company and the
Investors) shall be immediately and permanently forfeited and canceled and shall cease to be
outstanding, and Executive’s rights as a holder of such Units shall automatically and immediately
expire.
(b) In the event of a Separation resulting from or by way of:
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(i) a termination for Cause, the purchase price for each Co-Invest Unit (whether held
by Executive or one or more of Executive’s transferees, other than the Company and the
Investors) will be the lesser of (A) Executive’s Original Cost for such Unit and (B) the
Fair Market Value of such Unit as of the Separation Date;
(ii) a voluntary resignation without Good Reason, the purchase price for each Co-Invest
Unit and Vested Founders Unit (in each case, whether held by Executive or one or more of
Executive’s transferees, other than the Company and the Investors) will be the Fair Market
Value of such Unit as of the Separation Date;
(iii) a termination without Cause or a resignation with Good Reason, the purchase price
for each Founders Unit that became vested as a result of such Separation pursuant to the
second sentence of Section 2(b) (in each case, whether held by Executive or one or
more of Executive’s transferees, other than the Company and the Investors) will be the Fair
Market Value of such Unit as of the Separation Date; and
(iv) death or Disability, a termination without Cause or resignation for Good Reason,
the Co-Invest Units and the Vested Founders Units (other than such Vested Founders Units
subject to repurchase pursuant to Section 3(b)(iii)) (in each case, whether held by
Executive or one or more of Executive’s transferees, other than the Company and the
Investors) will not be subject to repurchase by the Company or the Investors pursuant to
this Section 3.
(c) In the event of a Separation described in Sections 3(b)(ii). 3(b)(ii) or
3(b)(iii) above, the Company (with the approval of the Board) may elect to purchase all or
any portion of the Co-Invest Units and/or Vested Founders Units eligible for purchase pursuant to
this Section 3 by delivering written notice (the “Repurchase Notice”) to the holder
or holders of such securities within six months and 10 days after the Separation. The Repurchase
Notice will set forth the number of Co-Invest Units and/or Vested Founders Units to be acquired
from each holder, the aggregate consideration to be paid for such units and the time and place for
the closing of the transaction. The number of Co-Invest Units and/or Vested Founders Units to be
repurchased by the Company shall first be satisfied to the extent possible from the Co-Invest Units
and/or Vested Founders Units held by Executive at the time of delivery of the Repurchase Notice. If
the number of Co-Invest Units and/or Vested Founders Units then held by Executive is less than the
total number of Co-Invest Units and/or Vested Founders Units, as applicable, that the Company has
elected to purchase, the Company shall purchase the remaining Co-Invest Units and/or Vested
Founders Units elected to be purchased from the other holder(s) of Executive Securities under this
Agreement (i.e., Executive’s permitted transferees), pro rata according to the number and type of
Executive Securities held by such other holder(s) at the time of delivery of such Repurchase Notice
(determined as nearly as practicable to the nearest Unit). The number of Co-Invest Units and/or
Vested Founders Units to be repurchased hereunder will be allocated among Executive and the other
holders of Executive Securities (if any) pro rata according to the number of Units to be purchased
from such Person.
(d) If for any reason the Company does not elect to purchase all of the Co-Invest Units and/or
Vested Founders Units pursuant to the Repurchase Option, the Investors shall be entitled to
exercise the Repurchase Option for all or any portion of the Co-Invest Units and/or Vested Founders
Units that the Company has not elected to purchase (the “Available Securities”). As soon as
practicable after the Company has determined that there will be Available Securities, but in any
event within five months after the Separation, the Company shall give written notice (the
“Option Notice”) to the Investors setting forth the number of Available Securities and the
purchase price for the Available Securities. The Investors may elect to purchase any or all of the
Available Securities by giving written notice to the Company within six months and 10 days after
the
Separation. If the Investors elect to purchase an aggregate number greater than the number of
Available Securities, the Available Securities shall be
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allocated among the Investors based upon the number of Class A Units owned by each Investor. As
soon as practicable, and in any event within ten days, after the expiration of the six-month and
ten-day period set forth above, the Company shall notify each holder of Executive Securities as to
the number of units being purchased from such holder by the Investors (the “Supplemental
Repurchase Notice”). At the time the Company delivers the Supplemental Repurchase Notice to the
holder(s) of Executive Securities, the Company shall also deliver written notice to each Investor
setting forth the number of Units such Investor is entitled to purchase, the aggregate purchase
price and the time and place of the closing of the transaction.
(e) The closing of the purchase of the Executive Securities pursuant to the Repurchase Option
shall take place on the date designated by the Company in the Repurchase Notice or Supplemental
Repurchase Notice, which date shall not be more than one month nor less than five days after the
delivery of the later of either such notice to be delivered. The Company will pay for the Executive
Securities to be purchased by it pursuant to the Repurchase Option by first offsetting amounts
outstanding under any promissory note executed by Executive pursuant to Section 1(a) and
Section 1(b) in connection with his acquisition of Co-Invest Units, and will pay the
remainder of the purchase price by a check or wire transfer of funds. Each Investor will pay for
the Executive Securities purchased by it by a check or wire transfer of funds. The Company and the
Investors will only be entitled to receive representations and warranties from the sellers regarding
ownership and authority.
(f) Notwithstanding anything to the contrary contained in this Agreement, if the Fair Market
Value of Executive Securities is finally determined to be an amount at least 20% greater than or
lesser than the per Unit repurchase price for such Unit of Executive Securities in the Repurchase
Notice or in the Supplemental Repurchase Notice, each of the Company and the Investors shall have
the right to revoke its exercise of the Repurchase Option for all or any portion of the Executive
Securities elected to be repurchased by it by delivering notice of such revocation in writing to
the holders of Executive Securities during the thirty-day period beginning on the date that the
Company and/or the Investors are given written notice that the Fair Market Value of a Unit of
Executive Securities was finally determined to be an amount at least 20% greater than or lesser
than the per Unit repurchase price for Executive Securities set forth in the Repurchase Notice or
in the Supplemental Repurchase Notice.
(g) In the event Executive fails to make any of the capital contributions that he is required
to make from time to time pursuant to Section 1 (b) above (a “Triggering Event”)
following a Separation, the Co-Invest Units purchased by Executive (whether held by Executive or
one or more of Executive’s transferees, other than the Company and the Investors) will be subject
to the provisions of Section 3.1(a) of the LLC Agreement (which shall be the sole remedy in the
case of a Triggering Event) but such failure shall not be deemed to be a breach of this Agreement
(but with it being understood that any failure to make any such capital contributions prior to a
Separation shall constitute a breach of this Agreement); provided that upon the occurrence
of a Triggering Event, Executive shall be deemed to have permanently and irrevocably forfeited his
right to make any additional capital contributions to the Company at any Subsequent Closing.
(h) The provisions of this Section 3 will terminate with respect to the Executive
Securities upon the consummation of a Public Offering or a Liquidity Event.
4. Restrictions on Transfer of Executive Securities. The holders of Executive
Securities shall not Transfer any interest in any Executive Securities, except pursuant to (i) the
provisions of Section 3 hereof or (ii) the provisions of Article IX of the LLC
Agreement.
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5. Legend. The certificates representing the Executive Securities will bear a legend
in substantially the following form:
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED AS OF JUNE 2, 2006,
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), AND MAY
NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
ACT OR AN EXEMPTION FROM REGISTRATION THEREUNDER. THE SECURITIES REPRESENTED BY THIS
CERTIFICATE ARE ALSO SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER, CERTAIN REPURCHASE
OPTIONS AND CERTAIN OTHER AGREEMENTS SET FORTH IN A SENIOR MANAGEMENT AGREEMENT BETWEEN THE
COMPANY AND AN EXECUTIVE OF THE
COMPANY AND OTHER PARTIES, DATED AS OF JUNE 2, 2006, AS AMENDED. A COPY OF SUCH AGREEMENT
MAY BE OBTAINED BY THE HOLDER HEREOF AT THE COMPANY’S PRINCIPAL PLACE OF BUSINESS WITHOUT
CHARGE.”
PROVISIONS RELATING TO EMPLOYMENT
6. Employment. Employer agrees to employ Executive and Executive accepts such
employment for the period beginning as of the date hereof and ending upon his separation pursuant
to Section 6(c) hereof (the “Employment Period”).
(a) Position and Duties. During the Employment Period, Executive shall serve as the
President and Chief Executive Officer of the Company and Employer (with it being understood that if
Executive is not appointed as the President of any particular Subsidiary, such appointed officer
shall report to Executive during the Employment Period) and shall have the normal duties,
responsibilities and authority implied by such position and that which an officer of a Delaware
corporation with such titles would have, including, without limitation, supervisory control over
the daily operations of the Company and Employer and the primary responsibility for the
identification, negotiation, completion and integration of any acquisitions made by the Company,
Employer or their Subsidiaries, subject to the power and authority of the Board, including, without
limitation, to override actions of the President and Chief Executive Officer. Executive shall
report to the Board, and, except during permitted vacation time, any periods of illness and
authorized leaves of absence, Executive shall devote substantially all of his business time and
attention to the business and affairs of the Company, Employer and their Subsidiaries. The
foregoing shall not, however, preclude Executive from (i) engaging in appropriate civic, charitable
or religious activities, (ii) devoting a reasonable amount of time to personal finance activities
or (iii) from providing incidental assistance to family members on matters of unrelated family
business, in each case so long as the foregoing activities and service do not conflict with or
interfere in any material respect with Executive’s duties or responsibilities to the Company and
Employer and their respective Subsidiaries. Executive shall perform his duties, responsibilities
and functions to the Company and its Subsidiaries hereunder in a faithful and diligent manner. In
performing his duties and exercising his authority under this Agreement, Executive shall support
and implement the business and strategic plans approved from time to time by the Board.
(b) Salary. Bonus and Benefits. During the Employment Period, Employer will pay
Executive a base salary of $375,000 per annum, which amount shall be reviewed at least annually by
the Board but any increase shall be at the sole discretion of the Board (as adjusted, the
“Annual Base Salary”). During the Employment Period, Executive shall be eligible for an
annual bonus (“Annual Bonus”) in an amount up to 100% of the Annual Base Salary then in
effect based upon the achievement by the Company, Employer and their Subsidiaries of financial and
other objectives set by the Board in
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consultation with Executive in conjunction with the annual
budgetary process contemplated by Section 3A(e) of the Purchase Agreement (with any such Annual
Bonus for 2006 to be pro rated based on the portion of the 2006 calendar year that remains after
the date hereof). An Annual Bonus, if any, will be paid to Executive by Employer on April 30th of
the fiscal year following the fiscal year to which such Annual Bonus relates. Executive must be
employed by the Company or Employer as of April 30 in any given calendar year in order to be
eligible to earn an Annual Bonus with respect to such calendar year. In addition to the Annual
Bonus, Executive shall be entitled to a one-time transaction bonus in an amount equal to his then
current Annual Base Salary (the “Transaction Bonus”) payable upon consummation of a
Liquidity Event, so long as Executive remains employed by the Company or Employer until the date of
such transaction.
Executive shall be entitled to participate in all medical, dental, hospitalization, accidental
death, disability, life insurance plans and any other plan offered by the Company or the Employer
to its executive-level personnel. Executive shall be entitled to four (4) weeks of paid vacation
during each calendar year. Any unused vacation may be carried over to subsequent years and if not
used prior to Separation, shall be paid out in cash; provided that Executive shall not be
entitled to accrue more than eight (8) weeks of vacation at any given time. Any vacation must be
taken at a time mutually convenient to the Company, Employer and Executive. During the Employment
Period, Employer shall reimburse Executive for all expenses incurred in furtherance of the
Company’s and Employer’s business, which expenses are consistent with Employer’s policies in effect
from time to time with respect to travel, entertainment and other business expenses, subject to
Employer’s requirements with respect to reporting and documentation of such expenses. During the
Employment Period, the Employer shall reimburse Executive for (i) his country club dues in an
amount not greater than $1,500 per month and (ii) the premium on Executive’s life insurance policy
with Equitable Life, policy number 000-000-000, beginning with the remaining period of 2006, pro
rated based on the numbers of days remaining in 2006 from the date hereof in an annualized amount
not greater than $19,000 (increasing by $1,500 per year),
(c) Separation. The Employment Period will continue until (i) Executive’s resignation,
Disability or death, or (ii) the Board decides to terminate Executive’s employment with or without
Cause. If
Executive’s employment is terminated by Employer without Cause or by Executive with Good
Reason, then (i) during the two-year period commencing on the date of termination (the
“Severance Period”), Employer shall continue to pay to Executive his then applicable Annual
Base Salary in equal installments on the Employer’s regular salary payment dates for such period
(the “Wage Severance”), (ii) during the Severance Period, Executive shall continue to
participate in, and be entitled to all accrued benefits under, employee benefit programs for senior
executive employees (other than bonus and incentive compensation plans) of the Company and its
Subsidiaries to the extent permitted under the terms of such programs and under applicable law;
provided, that, if such plans or programs do not permit Executive to receive medical, dental,
vision and the other benefits he and his dependants were otherwise entitled prior to Separation, in
each case, substantially similar to those received by him and his dependants prior to Executive’s
Separation, the Employer shall provide such medical, dental, vision and other benefits
substantially similar to those received by Executive and his dependants prior to his Separation
either by reimbursing Executive for the costs of COBRA, obtaining an individual policy for
Executive or allowing him to continue under the plans of the Company and its Subsidiaries, (iii)
Employer shall pay to Executive an amount equal to two times the average of Executive’s previous
three (3) Annual Bonuses (or such shorter period if less than three full years have elapsed prior
to a Separation), which amount shall be paid ratably over the Severance Period on the regular
salary payment dates for such period (items (i), (ii) and (iii) collectively referred to herein as,
the “Severance Payments”), (iv) Employer shall pay to Executive the amount of any Annual
Bonus earned with respect to the calendar year prior to the year of Separation when due and,
subject to Section 6(b). a pro-rated Annual Bonus for the year of Separation, (v) Employer
shall reimburse Executive for any expenses incurred in furtherance of the Company’s
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business prior
to Separation, which expenses are consistent with Employer’s policies in effect from time to time
with respect to travel, entertainment and other business expenses, subject to Employer’s
requirements with respect to reporting and documentation of such expenses and (vi) Employer shall
pay Executive for all accrued but unused vacation. For purposes of computing the average of
Executive’s previous three (3) Annual Bonuses for clause (iii) above, (w) if his Separation occurs
prior to January 1,
2007, the Annual Bonus shall be deemed to be the annualized pro rated portion of his Annual Bonus
(determined in good faith by the Board based upon the achievement as of the Separation Date by the
Company, Employer and their Subsidiaries of financial and other objectives set by the Board in
consultation with Executive in conjunction with the Company’s annual budgetary process) for 2006,
(x) if a Separation occurs prior to January 1, 2008 but on or after January 1, 2007, the Annual
Bonus shall be deemed to be the annualized Annual Bonus paid for 2006, (y) if a Separation occurs
prior to January 1, 2009 but on or after January 1, 2008, the Annual Bonus shall be deemed to be
the average of annualized Annual Bonus paid for 2006 and the Annual Bonus paid for 2007 and (z) if
a Separation occurs prior to January 1, 2010 but on or after January 1, 2009, the Annual Bonus
shall be deemed to be the average of annualized Annual Bonus paid for 2006, the Annual Bonus paid
for 2007 and the Annual Bonus paid for
2008. Notwithstanding the foregoing, (A) Executive shall not be entitled to receive any Severance
Payments unless Executive has executed and delivered to Employer a general release in the form
attached hereto as Exhibit E and (B) Executive shall be entitled to receive such payments
only so long as Executive has not breached the provisions of Sections 7 or 8 hereof and
does not apply for unemployment compensation chargeable to the Company during the Severance Period
unless Company fails to make the Severance Payments when due. Executive shall not be entitled to
the payments in clause (iii) above unless the EBITDA Threshold Date has occurred prior to
Executive’s Separation. If the Employment Period is terminated by Employer with Cause, as a result
of death or Disability or by Executive for resignation without Good Reason, Executive shall only be
entitled to receive his Annual Base Salary through the date of termination and shall not be
entitled to any other salary, compensation or employee or other benefits from the Company or its
Subsidiaries thereafter, except (i) as otherwise expressly required by applicable law (such as
COBRA), (ii) Employer shall pay to Executive the amount of any Annual Bonus earned with respect to
the calendar year prior to the year of Separation when due, (iii) Employer shall reimburse
Executive for any expenses incurred in furtherance of the Company’s business prior to Separation,
which expenses are consistent with Employer’s policies in effect from time to time with respect to
travel, entertainment and other business expenses, subject to Employer’s requirements with respect
to reporting and documentation of such expenses, (iv) Employer shall pay Executive for all accrued
but unused vacation and (v) Executive shall be entitled to all accrued benefits under any employee
benefit programs. In the event Executive is entitled to a pro-rated bonus, the pro-ration shall be
based on the achievement of the pre-approved objectives based upon Executive’s and the Company’s
performance relative to the previously approved objectives. If no goals have been established and
approved by the Board as of the date of termination, but executive performance goals are ultimately
approved by the Board that would apply to other executive employees for the period prior to
termination, then such goals as ultimately approved by the Board shall apply for purposes of
determining the pro-rated Annual Bonus hereunder. In any event, the extent to which Executive has
achieved the agreed upon Annual Bonus objectives and the method of proration shall be determined by
the Board in the exercise of its reasonable discretion.
7. Confidential Information.
(a) Obligation to Maintain Confidentiality. Executive acknowledges that the
information and data (including trade secrets) of a confidential, proprietary or secret nature
obtained by him during the course of his performance under this Agreement concerning the business
or affairs of the Company, Employer and their respective Subsidiaries and Affiliates
(“Confidential Information”) are the property of the Company, Employer or such Subsidiaries
and Affiliates, including information concerning acquisition
- 9 -
opportunities in or reasonably related
to the Company’s and Employer’s business or industry of which Executive becomes aware during the
Employment Period. Therefore, Executive agrees that he will not disclose to any unauthorized Person
or use for his own account any Confidential Information during the Employment Period and for a
period of five (5) years thereafter without the Board’s written consent, unless and to the extent
that the Confidential Information, (i) becomes generally known to and available for use by the
public other than as a result of Executive’s acts or omissions to act or (ii) is required to be
disclosed pursuant to any applicable law or court order. Executive shall deliver to the Company at
a Separation, or at any other time the Company may request, all memoranda, notes, plans, records,
reports, computer tapes, printouts and software and other documents and data (and copies thereof)
relating to the Confidential Information, Work Product (as defined below) or the business of the
Company, Employer and their respective Subsidiaries and Affiliates (including, without limitation,
all acquisition prospects, lists and contact information) which he may then possess or have under
his control. Notwithstanding the foregoing, Executive’s obligations and agreements pursuant to this
Section 7(a) with respect to any Confidential Information that constitutes a “trade secret”
as defined under applicable law shall continue indefinitely subsequent to the expiration of the
5-year period described above or until such Confidential Information no longer constitutes a “trade
secret,” other than as a result of Executive’s acts or omissions to act.
(b) Ownership of Property. Executive acknowledges that all discoveries, concepts,
ideas, inventions, innovations, improvements, developments, methods, processes, programs, designs,
analyses, drawings, reports, patent applications, copyrightable work and mask work (whether or not
including any confidential information) and all registrations or applications related thereto, all
other proprietary information and all similar or related information (whether or not patentable)
that relate to the Company’s, Employer’s or any of their respective Subsidiaries’ or Affiliates’
actual or anticipated business, research and development, or existing or future products or
services and that are conceived, developed, contributed to, made, or reduced to practice by
Executive (either solely or jointly with others) while employed by the Company, Employer or any of
their respective Subsidiaries or Affiliates (including any of the foregoing that constitutes any
proprietary information or records) (“Work Product”) belong to the Company, Employer or
such Subsidiary or Affiliate and Executive hereby assigns, and agrees to assign, all of the above
Work Product to the Company, Employer or to such Subsidiary or Affiliate. Any copyrightable work
prepared in whole or in part by Executive in the course of his work for any of the foregoing
entities shall be deemed a “work made for hire” under the copyright laws, and the Company, Employer
or such Subsidiary or Affiliate shall own all rights therein. To the extent that any such
copyrightable work is not a “work made for hire,” Executive hereby assigns and agrees to assign to
the Company, Employer or such Subsidiary or Affiliate all right, title, and interest, including
without limitation, copyright in and to such copyrightable work. At the request of the Board,
Executive shall promptly disclose such Work Product and copyrightable work to the Board and perform
all actions reasonably requested by the Board (whether during or after the Employment Period) to
establish and confirm the Company’s, Employer’s or such Subsidiary’s or Affiliate’s ownership
(including, without limitation, assignments, consents, powers of attorney, and other instruments)
at the sole cost and expense of the Company. Executive understands, however, that there is no
obligation being imposed on him to assign to the Company or any Subsidiary or Affiliate, any
invention falling within the definition of Work Product for which no equipment, supplies, facility,
or trade secret information of the Company or any of its Subsidiaries or Affiliates was used and
that was developed entirely on his own time, unless: (i) such Work Product relates (A) to the
Company’s, or its Subsidiaries’ or Affiliates’ businesses or (B) to their actual or demonstrably
anticipated research or development, or (ii) the Work Product results from any work performed by
him for them under this Agreement. Executive has identified on the signature page to this Agreement
all Work Product that is or was owned by him or was written, discovered, made, conceived or first
reduced to practice by him alone or jointly with another person prior to his employment
- 10 -
under this Agreement. If no such Work Product is listed, Executive represents to the Company that
he does not now nor has he ever owned, nor has he made, any such Work Product.
(c) Third Party Information. Executive understands that the Company, Employer and
their respective Subsidiaries and Affiliates will receive from third parties confidential or
proprietary information (“Third Party Information”) subject to a duty on the Company’s,
Employer’s and their respective Subsidiaries and Affiliates’ part to maintain the confidentiality
of such information and to use it only for certain limited purposes. During the Employment Period
and thereafter, and without in any way limiting the provisions of Section 7(a) above,
Executive will hold Third Party Information in the strictest confidence and will not disclose to
anyone (other than personnel and consultants of the Company, Employer or their respective
Subsidiaries and Affiliates who Executive reasonably believes need to know such information in
connection with their work for the
Company, Employer or their respective Subsidiaries and Affiliates) or use, except in
connection with his work for the Company, Employer or their respective Subsidiaries and Affiliates,
Third Party Information unless expressly authorized by a member of the Board in writing.
(d) Use of Information of Prior Employers. During the Employment Period, Executive
will not bring onto the premises of the Company, Employer or any of their respective Subsidiaries
or Affiliates any unpublished documents or any tangible property belonging to any former employer
or any other Person to whom Executive has an obligation of confidentiality unless consented to in
writing by the former employer or Person.
8. Restrictive Covenants. Executive acknowledges that in the course of his employment
with Employer he will become familiar with the Company’s, Employer’s and their respective
Subsidiaries’ trade secrets and with other confidential information concerning the Company,
Employer and such Subsidiaries and that his services will be of special, unique and extraordinary
value to the Company, Employer and such Subsidiaries. Therefore, Executive agrees that:
(a) Noncompetition. During the Employment Period and for a period of two years
thereafter (collectively, the “Noncompete Period”), Executive shall not directly or
indirectly, anywhere in the United States, own, manage, control, participate in, consult with,
render services for, or in any manner engage in any business competing with the businesses of the
Company, Employer or their respective Subsidiaries or any business in which the Company, Employer
or any of their respective Subsidiaries has held discussions with or has otherwise taken specific
steps to acquire such business by developing a business plan or documenting synergies within two
years prior to the Separation (for purposes of this Agreement, any business that engages in the
management or provision of anatomic pathology diagnostic, genomics or molecular testing services
(whether through physician practices, laboratories, hospitals, medical or surgical centers or
otherwise) shall be deemed to compete with the Company’s and Employer’s business). Nothing herein
shall prohibit Executive from being a passive owner of not more than 5% of the outstanding stock of
any class of a corporation that is publicly traded, so long as Executive has no active
participation in the business of such corporation.
(b) Nonsolicitation. During the Noncompete Period, Executive shall not directly or
indirectly through another entity (i) induce or attempt to induce any employee of the Company,
Employer or their respective Subsidiaries to leave the employ of the Company, Employer or such
Subsidiary, or in any way intentionally interfere in any material respect with the relationship
between the Company, Employer and any of their respective Subsidiaries and any employee thereof,
(ii) hire any person who was an employee of the Company, Employer or any of their respective
Subsidiaries within six months after such person ceased to be an employee of the Company, Employer
or any of their Subsidiaries, (iii) induce or attempt to induce any customer, supplier, licensee or
other business relation of the Company, Employer or any of their respective Subsidiaries to cease
doing business with the Company, Employer or such
- 11 -
Subsidiary or in any way intentionally interfere in any material respect with the relationship
between any such customer, supplier, licensee or business relation and the Company and any
Subsidiary or (iv) directly or indirectly acquire or attempt to acquire an interest in any business
relating to the business of the Company, Employer or any of their respective Subsidiaries and with
which the Company, Employer and any of their respective Subsidiaries had specific discussions or
had requested and received significant information relating to the acquisition of such business by
the Company, Employer or any of their respective Subsidiaries in the two year period immediately
preceding a Separation.
(c) Enforcement. If, at the time of enforcement of Section 7 or this
Section 8, a court holds that the restrictions stated herein are unreasonable under
circumstances then existing, the parties hereto agree that the maximum duration, scope or
geographical area reasonable under such circumstances shall be substituted for the stated period,
scope or area and that the court shall be allowed to revise the restrictions contained herein to
cover the maximum duration, scope and area permitted by law. Because Executive’s services are
unique and because Executive has access to confidential information, the parties hereto agree that
money damages would be an inadequate remedy for any breach of this Agreement. Therefore, in the
event a breach or threatened breach of this Agreement, the Company, Employer, their respective
Subsidiaries or their successors or assigns may, in addition to other rights and remedies existing
in their favor, apply to any court of competent jurisdiction for specific performance and/or
injunctive or other relief in order to enforce, or prevent any violations of, the provisions hereof
(without posting a bond or other security).
(d) Additional Acknowledgments. Executive acknowledges that the provisions of this
Section 8 are in consideration of: (i) employment with the Employer, (ii) the issuance of
the Executive Securities by the Company and (iii) additional good and valuable consideration as set
forth in this Agreement. In addition, Executive agrees and acknowledges that the restrictions
contained in Section 7and this Section 8 do not preclude Executive from earning a
livelihood, nor do they unreasonably impose limitations on Executive’s ability
to earn a living. In addition, Executive acknowledges (i) that the business of the Company,
Employer and their respective Subsidiaries will be conducted throughout the United States and other
jurisdictions where the Company, Employer or their respective Subsidiaries conduct business during
the Employment Period, (ii) notwithstanding the state of organization or principal office of the
Company, Employer or any of their respective Subsidiaries, or any of their respective executives or
employees (including the Executive), it is expected that the Company and Employer will have
business activities and have valuable business relationships within its industry throughout the
United States and other jurisdictions where the Company, Employer or their respective Subsidiaries
conduct business during the Employment Period, and (iii) as part of his responsibilities, Executive
will be traveling throughout the United States and other jurisdictions where the Company, Employer
or their respective Subsidiaries conduct business during the Employment Period in furtherance of
Employer’s business and its relationships. Executive agrees and acknowledges that the potential
harm to the Company and Employer of the non-enforcement of Section 7 and this Section
8 outweighs any potential harm to Executive of its enforcement by injunction or otherwise.
Executive acknowledges that he has carefully read this Agreement and has given careful
consideration to the restraints imposed upon Executive by this Agreement, and is in full accord as
to their necessity for the reasonable and proper protection of confidential and proprietary
information of the Company and Employer now existing or to be developed in the future. Executive
expressly acknowledges and agrees that each and every restraint imposed by this Agreement is
reasonable with respect to subject matter, time period and geographical area. Notwithstanding any
provision of this Agreement to the contrary, nothing contained in this Section 8 shall
limit or alter the right of Executive to own an equity interest in the Company (or its successor)
either before of after his Separation Date.
- 12 -
GENERAL PROVISIONS
9. Definitions.
“Affiliate” means, (i) with respect to any Person, any Person that controls, is
controlled by or is under common control with such Person or an Affiliate of such Person, and (ii)
with respect to any Investor, any general or limited partner of such Investor, any employee or
owner of any such partner, or any other Person controlling, controlled by or under common control
with such Investor.
“Board” means the Company’s board of managers.
“Cause” means (i) the conviction or plea of no contest for or indictment on a felony
or a crime involving dishonesty or fraud, which involves a material matter, with respect to the
Company, Employer or any of their respective Subsidiaries or any of their customers or suppliers,
(ii) substantial and repeated failure to perform duties of the office held by Executive as
reasonably directed by the Board, (iii) gross negligence or willful misconduct with respect to the
Company, Employer or any of their respective Subsidiaries that is materially harmful to the
Company, Employer or any of their respective Subsidiaries, and (iv) any breach by Executive of
Sections 7 or 8 of this Agreement. In the case of a termination for Cause pursuant to
clause (ii) above, Employer agrees that Executive shall have the opportunity to address the Board
before such termination for Cause becomes effective and shall have a one-time 15 business day
opportunity to cure such failure (i.e., a right not applicable to any subsequent failure) upon
written notice describing the action or omission constituting the Cause event.
“Disability” means the disability of Executive caused by any physical or mental
injury, illness or incapacity as a result of which Executive is or will be unable to effectively
perform the essential functions of Executive’s duties for a continuous period of more than 60 days
or for 90 days (whether or not continuous) within a 180 day period after reasonable accommodation,
as determined by the Board in good faith.
“EBITDA” means, with respect to any Person(s) for any period, the earnings of such
Person(s) for such period before interest, taxes, depreciation and amortization for such period,
determined on a consolidated basis in accordance with United States generally accepted accounting
principles as in effect from time to time.
“EBITDA Threshold Date” means the last day of the calendar month, if any, in which the
Company has consolidated EBITDA of at least $15 million on a pro forma basis (after giving effect
to any acquisitions or dispositions by the Company or any of its Subsidiaries that have been
consummated and taking into account the pro-forma adjustments consistent with the Company’s senior
credit agreement) over the full twelve calendar month period ending on such day, as if such
acquisitions or dispositions had occurred on the first day of the first calendar month in such
twelve calendar month period.
“Equity Agreement” means an Equity Agreement, as defined in the LLC
Agreement.
“Executive Securities” will continue to be Executive Securities in the hands of any
holder other than Executive (except for the Company and the Investors and except for transferees in
a Public Sale), and except as otherwise provided herein, each such other holder of Executive
Securities will succeed to all rights and obligations attributable to Executive as a holder of
Executive Securities hereunder. Executive Securities will also include equity of the Company (or a
corporate successor to the Company or a Subsidiary of the Company) issued with respect to Executive
Securities (i) by way of a unit split, unit dividend, conversion, or other recapitalization, (ii)
by way of reorganization or recapitalization
- 13 -
of the Company in connection with the incorporation of
a corporate successor prior to a Public Offering or (iii) by way of a distribution of securities of
a Subsidiary of the Company to the members of the Company following or with respect to a Subsidiary
Public Offering. Notwithstanding the foregoing, all Unvested Founders Units shall remain Unvested
Co-Invest Units after any Transfer thereof.
“Fair Market Value” of each Unit of Executive Securities means the fair market value
of such Unit as initially determined in good faith by the Board consistent with these provisions.
For such purpose, the fair market value of such Unit of Executive Securities shall equal the amount
the holders thereof would receive if the Company sold all of its assets as a private company going
concern for cash after a reasonable opportunity to market such sale to a willing buyer, satisfied
all of its liabilities and liquidated in accordance with the LLC Agreement, all as of the
Separation Date giving rise to the need to determine fair market value; provided that such
determination shall not take into account any premiums or discounts and shall disregard (and add
back for purposes of determining EBITDA) any payments or obligations to the Investors for
management or consulting fees, including pursuant to that certain Management Services Agreement,
dated as of the date hereof, by and among SPLP, Employer and GSO Capital Partners. The Board shall
deliver to Executive written notice of such fair market value concurrent with the delivery of the
Repurchase Notice (or if no Repurchase Notice is delivered, delivery of the Supplemental Repurchase
Notice), which notice shall provide reasonable support for such determination including the fair
market value of each class of Units on a per unit basis as determined by the Board consistent with
these provisions. If Executive disagrees with such determination, Executive shall deliver to the
Board a written notice of objection within ten days after delivery of the Repurchase Notice (or if
no Repurchase Notice is delivered, then within ten days after delivery of the Supplemental
Repurchase Notice). Upon receipt of Executive’s written notice of objection, the Board and
Executive will negotiate in good faith to agree on such Fair Market Value. If such agreement is not
reached within 20 days after the delivery of the Repurchase Notice (or if no Repurchase Notice is
delivered, then within 20 days after the delivery of the Supplemental Repurchase Notice), Fair
Market Value shall be determined by an appraiser jointly selected by the Board and Executive, which
appraiser shall submit to the Board and Executive a report within 30 days of its engagement setting
forth such determination. If the parties are unable to agree on an appraiser within 30 days after
delivery of the Repurchase Notice or within seven days after delivery of the Supplemental
Repurchase Notice, each party shall submit the names of four nationally recognized firms that are
engaged in the business of valuing non-public companies, and each party shall be entitled to strike
two names from the other party’s list of firms, and the appraiser shall be selected by lot from the
remaining four appraisal firms. The expenses of such appraiser shall be borne equally by Executive
and the Company unless the appraiser’s valuation is more than (i) 20% greater than the amount
determined by the Board, in which case the expenses of the appraiser shall be borne by the Company
and (ii) 20% less than the amount determined by the Board, in which case the expenses of the
appraiser shall be borne by Executive. In making such appraisal, the appraiser shall determine the
fair value of the Company as a whole without any discount for either lack of control or contractual
restrictions on transfer applicable to the Executive Securities. Any determination of fair market
value shall be based upon the terms and conditions of this Agreement, and under no circumstances
shall the appointed appraiser add to, modify, disregard or change any of the provisions of this
Agreement, and the jurisdiction and scope of such appraiser shall be limited accordingly. The
determination of Fair Market Value pursuant to this definition shall be final and binding upon all
parties.
“Good Reason” means (i) a reduction in, or failure to pay when due or promptly
thereafter, Executive’s Annual Base Salary, (ii) a material diminution in Executive’s titles or
duties inconsistent with his position, (iii) failure to pay any Annual Bonus when due or a
reduction in Executive’s Annual Bonus opportunity of 100% of the Annual Base Salary, (iv) a
material reduction in the employee benefits offered to Executive that is not also applicable to
executive employees of the Employer generally, and (v) a change in Executive’s principal office to
a location more than 50 miles
- 14 -
from Palm Beach Gardens, Florida, in each case without the prior
written consent of Executive; provided that written notice of Executive’s resignation must
be delivered to the Company within 30 days after his actual knowledge of any such event in order
for such resignation to be with Good Reason for any purpose hereunder and that the Company has a
reasonable opportunity to cure in the event of a notice with respect to clause (ii) above.
“Liquidity Event” means a Liquidity Event, as defined in the LLC Agreement.
“LLC Agreement” means the Limited Liability Company Agreement of the Company, as
amended from time to time pursuant to its terms.
“Original Cost” means, with respect to each Co-Invest Unit purchased hereunder, the
Unreturned Capital (as defined in the LLC Agreement) with respect to such Unit as of the date of
determination.
“Person” means an individual, a partnership, a limited liability company, a
corporation, an association, a joint stock company, a trust, a joint venture, an unincorporated
organization, investment fund, any other business entity and a governmental entity or any
department, agency or political subdivision thereof.
“Public Offering” means any underwritten sale of common equity securities of the
Company or Employer (or, in each case, any corporate successor thereto) pursuant to an effective
registration statement under the Securities Act filed with the Securities and Exchange Commission.
“Public Sale” means (i) any sale pursuant to a registered public offering under the
Securities Act or (ii) any sale to the public pursuant to Rule 144 promulgated under the Securities
Act effected through a broker, dealer or market maker (other than pursuant to Rule 144(k) prior to
a Public Offering).
“Securities Act” means the Securities Act of 1933, as amended from time to
time.
“Separation” means Executive ceasing to be employed by the Company, Employer or any of
their respective Subsidiaries for any reason.
“Separation Date” means the date of a Separation.
“Subsidiary” means, with respect to any Person, any corporation, limited liability
company, partnership, association, or business entity of which (i) if a corporation, a majority of
the total voting power of shares of stock entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers, or trustees thereof is at the time
owned or controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof, or (ii) if a limited liability company,
partnership, association, or other business entity (other than a corporation), a majority of
partnership or other similar ownership interest thereof is at the time owned or controlled,
directly or indirectly, by that Person or one or more Subsidiaries of that Person or a combination
thereof. For purposes hereof, a Person or Persons shall be deemed to have a majority ownership
interest in a limited liability company, partnership, association, or other business entity (other
than a corporation) if such Person or Persons shall be allocated a majority of limited liability
company, partnership, association, or other business entity gains or losses or shall be or control
any managing director or general partner of such limited liability company, partnership,
association, or other business entity. For purposes hereof, references to a “Subsidiary” of
any Person shall be given effect only at such
- 15 -
times that such Person has one or more Subsidiaries,
and, unless otherwise indicated, the term “Subsidiary” refers to a Subsidiary of the
Company.
“Subsidiary Public Offering” means the sale in an underwritten public offering
registered under the Securities Act of equity securities of Employer or another Subsidiary of the
Company.
“Transfer” means to sell, transfer, assign, pledge or otherwise dispose of (whether
with or without consideration and whether voluntarily or involuntarily or by operation of law).
“Unit” means a Unit, as defined in the LLC Agreement.
10. Notices. All notices, demands or other communications to be given or delivered
under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to
have been given when received (i) if delivered personally to the recipient, (ii) if sent to the
recipient by reputable express courier service (charges prepaid) or (iii) if mailed to the
recipient by certified or registered mail, return receipt requested and postage prepaid. Such
notices, demands and other communications shall be sent to the parties at the addresses indicated
below:
If to Employer or the Company:
Aurora Diagnostics, LLC/
Aurora Diagnostics Holdings, LLC
000 Xxx Xxxxx Xxx
Xxxx Xxxxx Xxxxxxx, Xxxxxxx 00000-0000
Attention: Chief Executive Officer
Aurora Diagnostics Holdings, LLC
000 Xxx Xxxxx Xxx
Xxxx Xxxxx Xxxxxxx, Xxxxxxx 00000-0000
Attention: Chief Executive Officer
with copies to:
Summit Partners, L.P.
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000)000-0000
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000)000-0000
and
GSO Capital Partners
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxx, Xx.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxx, Xx.
and
Xxxxxxxx & Xxxxx LLP
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxx X. Xxxx, P.C.
Xxxx X. Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxx X. Xxxx, P.C.
Xxxx X. Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
- 16 -
If to the Company:
Aurora Diagnostics Holdings, LLC
000 Xxx Xxxxx Xxx
Xxxx Xxxxx Xxxxxxx, Xxxxxxx 00000-0000
Attention: Chief Executive Officer
000 Xxx Xxxxx Xxx
Xxxx Xxxxx Xxxxxxx, Xxxxxxx 00000-0000
Attention: Chief Executive Officer
with copies to:
Summit Partners, L.P.
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000)000-0000
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000)000-0000
and
GSO Capital Partners
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxx, Xx.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxx, Xx.
and
Xxxxxxxx & Xxxxx LLP
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxx X. Xxxx, P.C.
Xxxx X. Xxxx
Telephone: (000) 000-0000
Facsimile: (000)000-0000
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxx X. Xxxx, P.C.
Xxxx X. Xxxx
Telephone: (000) 000-0000
Facsimile: (000)000-0000
If to Executive:
Xxxxx X. New
000 Xxx Xxxxx Xxx
Xxxx Xxxxx Xxxxxxx, XX 00000-0000
000 Xxx Xxxxx Xxx
Xxxx Xxxxx Xxxxxxx, XX 00000-0000
with copies to:
Xxxxxx & Bird LLP
Bank of America Plaza
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Facsimile Number: (000)000-0000
Attention: Xxx X. Xxxxxx
Bank of America Plaza
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Facsimile Number: (000)000-0000
Attention: Xxx X. Xxxxxx
- 17 -
If to the Investors:
Summit Partners, L.P.
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000)000-0000
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000)000-0000
and
GSO Capital Partners
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxx, Xx.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxx, Xx.
with a copy to:
Xxxxxxxx & Xxxxx LLP
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxx X. Xxxx, P.C.
Xxxx X. Xxxx
Telephone: (000) 000-0000
Facsimile: (000)000-0000
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxx X. Xxxx, P.C.
Xxxx X. Xxxx
Telephone: (000) 000-0000
Facsimile: (000)000-0000
and
Xxxx Xxxxx & Xxxxxxx LLP
Xxx Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Telephone: (000)000-0000
Facsimile: (000) 000-0000
Xxx Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Telephone: (000)000-0000
Facsimile: (000) 000-0000
or such other address or to the attention of such other Person as the recipient party shall have
specified by prior written notice to the sending party.
11. General Provisions.
(a) Transfers in Violation of Agreement. Any Transfer or attempted Transfer of any
Executive Securities in violation of any provision of this Agreement shall be void, and the Company
shall not record such Transfer on its books or treat any purported transferee of such Executive
Securities as the owner of such equity for any purpose.
(b) Severability. Whenever possible, each provision of this Agreement will be
interpreted in such manner as to be effective and valid under applicable law, but if any provision
of this Agreement is held to be invalid, illegal or unenforceable in any respect under any
applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability will
not affect any other provision or any
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other jurisdiction, but this Agreement will be reformed,
construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision
had never been contained herein.
(c) Complete Agreement. This Agreement, those documents expressly referred to herein
and other documents of even date herewith embody the complete agreement and understanding among the
parties and supersede and preempt any prior understandings, agreements or representations by or
among the parties, written or oral, which may have related to the subject matter hereof in any way.
(d) No Strict Construction. The language used in this Agreement shall be deemed to be
the language chosen by the parties hereto to express their mutual intent, and no rule of strict
construction shall be applied against any party.
(e) Counterparts. This Agreement may be executed in separate counterparts (including
by means of facsimile), each of which is deemed to be an original and all of which taken together
constitute one and the same agreement.
(f) Successors and Assigns. Except as otherwise provided herein, this Agreement shall
bind and inure to the benefit of and be enforceable by Executive, the Company, Employer, the
Investors and their respective successors and assigns (including subsequent holders of Executive
Securities); provided that the rights and obligations of Executive under this Agreement
shall not be assignable except in connection with a permitted transfer of Executive Securities
hereunder.
(g)
Choice of Law. The law of the State of Delaware will govern all questions
concerning the relative rights of the Company, Employer and its securityholders. All other
questions concerning the construction, validity and interpretation of this Agreement and the
exhibits hereto will be governed by and construed in accordance with the internal laws of the State
of Delaware, without giving effect to any choice of law or conflict of law provision or rule
(whether of the State of Delaware or any other jurisdiction) that would cause the application of
the laws of any jurisdiction other than the State of Delaware.
(h) MUTUAL WAIVER OF JURY TRIAL. BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX
TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND EXPERT PERSON AND THE
PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE
PARTIES DESIRE THAT THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE,
TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, EACH
PARTY TO THIS AGREEMENT HEREBY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, SUIT, OR
PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE BETWEEN OR AMONG ANY OF THE PARTIES HERETO, WHETHER
ARISING IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED OR INCIDENTAL TO
THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREBY AND/OR THE RELATIONSHIP ESTABLISHED AMONG THE
PARTIES HEREUNDER.
(i) Executive’s Cooperation. During the Employment Period, Executive shall cooperate
with the Company, Employer and their respective Subsidiaries and Affiliates in any disputes with
third parties, internal investigation or administrative, regulatory or judicial proceeding as
reasonably requested by the Company (including, without limitation, 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
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into Executive’s possession, all at times and on schedules that are
reasonably consistent with Executive’s other permitted activities and commitments). In the event
the Company desires Executive’s cooperation in accordance with this paragraph after the Employment
Period, the Company shall reimburse Executive for reasonable travel expenses (including lodging and
meals, upon submission of receipts) and compensate Executive at a reasonable rate for such
cooperation, as determined by mutual agreement of the Company and Executive.
(j) Remedies. Each of the parties to this Agreement (and the Investors as third-party
beneficiaries) will be entitled to enforce its rights under this Agreement specifically, to recover
damages and costs (including attorney’s fees) caused by any breach of any provision of this
Agreement and to exercise all other rights existing in its favor. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of the provisions of
this Agreement and that any party may in its sole discretion apply to any court of law or equity of
competent jurisdiction (without posting any bond or deposit) for specific performance and/or other
injunctive relief in order to enforce or prevent any violations of the provisions of this
Agreement. In the event any such parties file suit and does not prevail, they shall reimburse
Executive for his
reasonable attorney’s fees in defending such suit and in the event Executive files suit and
does not prevail, Executive shall reimburse such parties for their reasonable attorney’s fees in
defending such suit.
(k) Amendment and Waiver. The provisions of this Agreement may be amended and waived
only with the prior written consent of the Company, Employer, Executive and the Majority Summit
Investors (as defined in the LLC Agreement).
(1) Insurance. The Company, at its discretion, may apply for and procure in its own
name and for its own benefit life and/or disability insurance on Executive in any amount or amounts
considered available. Executive agrees to cooperate in any reasonable medical or other examination,
supply any information, and to execute and deliver any applications or other instruments in writing
as may be reasonably necessary to obtain and constitute such insurance.
(m) Business Days. If any time period for giving notice or taking action hereunder
expires on a day which is a Saturday, Sunday or holiday in the state in which the Company’s chief
executive office is located, the time period shall be automatically extended to the business day
immediately following such Saturday, Sunday or holiday.
(n) Indemnification and Reimbursement of Payments on Behalf of Executive. The Company
and its Subsidiaries shall be entitled to deduct or withhold from any amounts owing from the
Company or any of its Subsidiaries to Executive any federal, state, local or foreign withholding
taxes, excise taxes, or employment taxes (“Taxes”) imposed with respect to Executive’s
compensation or other payments from the Company or its Subsidiaries, including, without limitation,
wages and bonuses. In the event the Company or its Subsidiaries does not make such deductions or
withholdings on Executive’s behalf, Executive shall indemnify the Company and its Subsidiaries for
any amounts paid with respect to any such Taxes, together with any interest, penalties and related
expenses thereto.
(o) Termination. This Agreement (except for the provisions of Sections 6(a)
and (b)) shall survive a Separation and shall remain in full force and effect after such
Separation.
(p) Adjustments of Numbers. All numbers set forth herein that refer to unit prices or
amounts will be appropriately adjusted to reflect unit splits, unit dividends, combinations of
units and other recapitalizations affecting the subject class of equity.
- 20 -
(q) Deemed Transfer of Executive Securities. If the Company (and/or the Investors
and/or any other Person acquiring securities) shall make available, at the time and place and in
the amount and form provided in this Agreement, the consideration for the Executive Securities to
be repurchased in accordance with the provisions of this Agreement, then from and after such time,
the Person from whom such units are to be repurchased shall no longer have any rights as a holder
of such units (other than the right to receive payment of such consideration in accordance with
this Agreement), and such units shall be deemed purchased in accordance with the applicable
provisions hereof and the Company (and/or the Investors and/or any other Person acquiring
securities) shall be deemed the owner and holder of such units, whether or not the certificates
therefor have been delivered as required by this Agreement.
(r) No Pledge or Security Interest. The purpose of the Company’s retention of
Executive’s certificates and executed security powers is solely to facilitate the provisions set
forth in Section 3 herein and Sections 9.4 and 9.10 of the LLC Agreement
and does not by itself constitute a pledge by Executive of, or the granting of a security interest
in, the underlying equity.
(s) Rights Granted to Investors and their Affiliates. Any rights granted to the
Investors and their Affiliates hereunder may also be exercised (in whole or in part) by their
designees.
(t) Subsidiary Public Offering. If, after consummation of a Subsidiary Public
Offering, the Company distributes securities of such Subsidiary to members of the Company, then
such securities will be treated in the same manner as the units with respect to which they were
distributed for purposes of Sections 1, 2, 3, 4 and 5 hereof.
(u) Delivery by Facsimile. This Agreement, the agreements referred to herein, and each
other agreement or instrument entered into in connection herewith or therewith or contemplated
hereby or thereby, and any amendments hereto or thereto, to the extent signed and delivered by
means of a facsimile machine, shall be treated in all manner and respects as an original agreement
or instrument and shall be considered to have the same binding legal effect as if it were the
original signed version thereof delivered in person. At the request of
any party hereto or to any such agreement or instrument, each other party hereto or thereto
shall reexecute original forms thereof and deliver them to all other parties. No party hereto or to
any such agreement or instrument shall raise the use of a facsimile machine to deliver a signature
or the fact that any signature or agreement or instrument was transmitted or communicated through
the use of a facsimile machine as a defense to the formation or enforceability of a contract and
each such party forever waives any such defense.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Senior Management Agreement on the
date first above written.
| AURORA DIAGNOSTICS HOLDINGS, LLC |
||||
| By: | /s/ Xxxxxx X. Xxxxxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxxxxx | |||
| Its: Secretary | ||||
| AURORA DIAGNOSTICS, LLC |
||||
| By: | /s/ Xxxxxx X. Xxxxxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxxxxx | |||
| Its: Secretary | ||||
| By: | /s/ Xxxxx X. New | |||
| Xxxxx X. New | ||||
Signature Page to Senior Management Agreement of Xxxxx X. New
Agreed and Accepted:
THE INVESTORS:
THE INVESTORS:
SUMMIT VENTURES VI-A, L.P.
By: Summit Partners VI (GP), L.P.
Its: General Partner
Its: General Partner
By: Summit Partners VI (GP), LLC
Its: General Partner
Its: General Partner
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Its: Member | ||||
SV VI-B AURORA HOLDINGS, L.P.
By: Summit Partners VI (GP), L.P.
Its: General Partner
Its: General Partner
By: Summit Partners VI (GP), LLC
Its: General Partner
Its: General Partner
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Its: Member | ||||
SUMMIT VI ADVISORS FUND, L.P.
By: Summit Partners VI (GP), L.P.
Its: General Partner
Its: General Partner
By: Summit Partners VI (GP), LLC
Its: General Partner
Its: General Partner
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Its: Member | ||||
SUMMIT VI ENTREPRENEURS FUND, L.P.
By: Summit Partners VI (GP), L.P.
Its: General Xxxxxx
Its: General Xxxxxx
By: Summit Partners VI (GP), LLC
Its: General Partner
Its: General Partner
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Its: Member | ||||
Signature Page to Senior Management Agreement of Xxxxx X. New
SUMMIT INVESTORS VI, L.P.
By: Summit Partners VI (GP), L.P.
Its: General Partner
By: Summit Partners VI (GP), LLC
Its: General Partner
Its: General Partner
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Its: Member | ||||
SUMMIT PARTNERS PRIVATE EQUITY FUND
VII-A, L.P.
VII-A, L.P.
By: Summit Partners PE VII, L.P.
Its: General Partner
Its: General Partner
By: Summit Partners PE VII, LLC
Its: General Partner
Its: General Partner
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Its: Member | ||||
SPPE VII-B AURORA HOLDINGS, L.P.
By: Summit Partners PE VII, L.P.
Its: General Partner
Its: General Partner
By: Summit Partners PE VII, LLC
Its: General Partner
Its: General Partner
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Its: Member | ||||
| GSO SPECIAL SITUATIONS FUND LP |
||||
| By: | /s/ Xxxxxx Fan | |||
| Name: | Xxxxxx Fan | |||
| Its: | Chief Legal Officer | |||
| GSO SUMNOSTICS HOLDINGS (US), INC. |
||||
| By: | /s/ Xxxxxx Fan | |||
| Name: | Xxxxxx Fan | |||
| Its: | Vice President | |||
Signature Page to Senior Management Agreement of Xxxxx X. New
