EXHIBIT 10.51
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EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (the "Agreement") by and between INFOCURE
CORPORATION, INC., a Delaware corporation ("Company"), and XXXXXXX XXXXXXX
("Executive") is hereby entered into as of the ________ day of December, 1997
(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 the vast majority of medical specialties and office-based health
care practices in the United States (the "Business");
WHEREAS, Executive desires to be employed by Company 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.
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A. Company shall employ Executive as Chairman of the Board and Chief
Financial Officer during the term of his employment as set forth in this
Agreement and Executive hereby accepts such employment. Executive shall report
to the President and Board of Directors of Company and shall have duties and
responsibilities as set forth on EXHIBIT A and/or as may be assigned, from time
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to time, by the President and Board of Directors of Company (the "Duties").
B. Executive shall use his best efforts to perform his duties in
accordance with any applicable business plans and budgets and policies in
effect.
C. Executive agrees that he shall at all times faithfully and to the best
of his ability and experience faithfully perform all of the duties that may be
required of him pursuant to the terms of this Agreement.
D. 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 and community activities substantially to the same
extent as he has devoted time and effort prior to the effective date of this
Agreement provided that such involvement with charitable and community
activities does not materially interfere with the performance of his duties
under this Agreement.
2. Compensation.
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A. Base Salary. During the Term (as defined below), Company shall pay to
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Executive a base salary ("Base Salary") of One Hundred Twenty Thousand Dollars
($120,000.00) per year, payable in arrears in equal semi-monthly payments. In
the event of a Disability, to the extent payments are received under an
employer-sponsored disability program, the payments hereunder are to be reduced
by an amount equal to such disability payments.
B. Incentive Compensation. During the Term of this Agreement, in addition
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to the Base Salary as provided in Section 2.A. above, Executive shall be
eligible for annual incentive compensation (the "Incentive Compensation")
pursuant to a program established by Company's Board of Directors in its sole
and absolute discretion, from time to time, provided that the Goals (as defined
below) of said program are met by Executive. The Incentive Compensation program
shall be based upon the achieving of certain revenue and/or profit goals and/or
other goals (the "Goals") of Company. Upon the establishment of the program and
Goals, the parties agree to enter into an agreement setting forth the Incentive
Compensation program and Executive's eligibility to participate in said program,
which agreement shall be attached hereto as EXHIBIT B and shall constitute a
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part of this Agreement.
C. Employee Benefit Programs. Executive shall be eligible to participate
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in all employee benefit programs; including medical and hospitalization
programs; employee stock option and bonus plans generally made available to
employees of Executive's employment status; now or hereafter made available,
subject to the terms and conditions of such programs, including eligibility. It
is understood that Company reserves the right to modify and rescind any program
or adopt new programs in its sole discretion. Company may, in its sole
discretion, maintain key man life insurance on the life of Executive and
designate Company as the beneficiary. Executive agrees to execute any documents
necessary to effect such policy.
D. Vacation. Executive shall accrue four (4) weeks of vacation during
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each calendar year during the term of this Agreement (with such vacation time
pro-rated for 1997). Vacation time shall be taken at such time as not to
materially interfere with the Business of Company and must be pre-approved by
Company. Vacation time may not be carried forward from one (1) calendar year to
another.
E. Automobile Allowance. Executive shall be entitled to receive an
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automobile allowance of One Thousand Dollars ($1,000.00) per month and operating
costs when operated for business purposes. The automobile allowance shall be
payable semi-monthly.
3. Term. The term of employment of Executive under this Agreement shall
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be for a period of four (4) years (the "Term") commencing on the date hereof and
ending on the fourth (4th) anniversary thereof, subject to earlier termination
as provided in Section 4. If the employment of Executive continues thereafter,
absent a written agreement, the employment following the Term shall be at will
and the provisions of this Agreement shall be of no force and effect with
respect to any such subsequent period, except for the provisions of Sections 5.
through 10. below.
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4. Early Termination.
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A. For Cause.
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(i) Notwithstanding the foregoing, Company may terminate the
employment of Executive "for cause" (as hereinafter defined) at any time upon
written notice effective immediately. The term "for cause" shall mean (1) the
continued failure by Executive substantially to perform his duties with Company
in a reasonably professional manner other than due to a Total and Permanent
Disability or death for a period of thirty (30) days after a written demand for
substantial performance is delivered to Executive by the Board of Directors or
President of Company, which demand identifies the manner in which the Board of
Directors or President believes Executive has not substantially performed his
duties; (2) the unauthorized dissemination of Confidential Information (as
defined below) of Company or any of its subsidiaries; (3) the commission of a
felony or any other crime involving moral turpitude or the pleading of nolo
contendere to any such act; (4) the commission of any act of dishonesty when
such act is intended to result or results, directly or indirectly, in gain or
personal enrichment of Executive or any related person or affiliate of Executive
or is intended to cause harm or damage to Company or any of its subsidiaries;
(5) the illegal use of controlled substances; (6) the use of alcohol so as to
have a material adverse effect on the performance of his duties; (7) the
misappropriation or embezzlement of assets of Company or any of its
subsidiaries; (8) the making of material disparaging remarks regarding Company
or the products or services of any such person to suppliers and/or customers of
Company or any of its subsidiaries or (9) the breach of any other material term
or provision of this Agreement to be performed by Executive which has not been
cured within thirty (30) days of receipt of written notice of such breach.
(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 thirtieth (30th) day
following the effective date of the termination of employment for cause.
B. Termination Upon Death or Total and Permanent Disability.
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(i) The employment of Executive shall terminate upon his death
or, ten (10) business days after written notice by Company of termination, upon
or during the continuance of the Total and Permanent Disability (as hereinafter
defined) of Executive.
(ii) Upon termination upon death or upon or during Executive's
Total and Permanent Disability, Company shall have no further obligation to pay
any compensation for periods after the effective date of such termination,
except for Base Salary which accrued as of the termination date. The term "Total
and Permanent Disability" means the suffering by Executive of a Disability for a
period (whether or not continuous) in excess of ninety (90) days, unless
extended in writing by Company. A Total and Permanent Disability shall be deemed
to commence upon the expiration of such ninety (90) day period.
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(iii) For purposes hereof, the terms "Disabled" or "Disability"
shall mean the suffering by Executive of a physical or mental condition
resulting from bodily injury, disease, or mental disorder which renders
Executive incapable of continuing each and every one of his or her usual and
customary duties in an efficient manner as an employee of Company, as determined
by the Board of Directors. No Disability shall be deemed to exist until
Executive shall be unable to perform such duties hereunder for seven (7)
consecutive days, and after such Disability continues for seven (7) consecutive
days, then the same shall be deemed to have existed from the first (1st) day of
such Disability. At the end of any Disability (other than a Disability that
results in a Total and Permanent Disability as defined below), Executive shall
return to work, and this Agreement shall continue as though such Disability had
not occurred.
If Executive desires to return to work at the end of any Disability, but
there is a dispute as to whether Executive is able to perform his or her duties
hereunder or if there is a dispute as to whether Executive is Disabled or has
suffered a Total and Permanent Disability, the issue shall be submitted to a
Board of Arbiters consisting of three (3) persons: one (1) physician who
specializes in the physical or mental condition which resulted in the Disability
(hereinafter referred to as a "Specialist") shall be appointed on behalf of
Company by the Board of Directors of Company (with Executive having no vote on
this question); the second (2nd) Specialist shall be appointed by Executive and
a third (3rd) Specialist shall be appointed by the two (2) Specialists so
appointed. If a dispute remains following the completion of this procedure, the
matter shall be determined as set forth in Section 16. below. If a majority of
the Specialists determine that Executive is able to perform his or her duties
hereunder on a full-time basis, Executive shall be permitted to return to work
under the provisions hereof. Executive agrees to submit medical records
requested and to submit to such examination and testing requested by such
physician.
C. Change In Control. In the event of a Change in Control (as hereinafter
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defined) of Company and the Executive elects, in his sole discretion, to
terminate his employment hereunder as of a date within six (6) 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, on the date of the termination of employment an amount equal
to the Executive's then annual base salary rate.
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 50% 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;
or
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(ii) Individuals who, as of the date hereof, constitute the board of
directors of Company ("Incumbent Board") cease for any reason to constitute
at 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 optionees immediately prior to such
merger, consolidation or other reorganization, immediately thereafter, do
not own more than 50% 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.
The term "Change in Control" shall not include any change in the Board of
Directors of Company as provided in subparagraph (ii) above.
D. Termination by Company Without Cause. In the event Company terminates
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the employment of the Executive, except for cause, prior to the expiration of
term of this Agreement as set forth in Section 3. hereof, Company shall pay
Executive, as its sole and exclusive liability hereunder, an amount equal to
twelve (12) months of the Executive's then current monthly base salary. Payment
shall be made within five (5) days of such termination.
5. Company Property. All records, designs, patents, business plans,
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financial statements, manuals, memoranda, lists and other property delivered to
or compiled by Executive by or on behalf of Company or its representatives,
vendors or customers which pertain to the Business of Company shall be and
remain the property of Company, as the case may be, and be subject at all times
to its discretion and control.
6. Confidential Information.
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A. Company may disclose to Executive certain Confidential Information
(defined below). Executive acknowledges and agrees that Company has a
reasonable, competitive business interest in the Confidential Information and
the Confidential Information is the sole and exclusive property of Company (or a
third party providing such information to Company) and that Company or such
third party owns all worldwide rights therein under patent, copyright, trade
secret, confidential information, moral right or other property right.
Executive acknowledges and agrees that the disclosure of the Confidential
Information to Executive does not confer upon Executive any license, interest or
rights of any kind in or to the Confidential Information. Executive may use the
Confidential Information solely for the benefit of Company while Executive is
employed by Company. Except in the performance of services for Company,
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Executive shall hold in confidence and not reproduce, distribute, transmit,
reverse engineer, decompile, disassemble, or transfer, directly or indirectly,
in any form, by any means, or for any purpose, the Confidential Information or
any portion thereof. Executive agrees to return to Company, upon request by
Company, the Confidential Information and all materials relating thereto.
B. Executive acknowledges that his obligations with regard to the
Confidential Information shall remain in effect while Executive is engaged by
Company and for a period of two (2) years thereafter.
"Confidential Information" shall mean any confidential or proprietary
information possessed by Seller or relating to its business, including, without
limitation, any confidential "know-how," 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 plans, 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; provided, however, that Executive shall not be restricted
from disclosing or using Confidential Information that: (i) is or becomes
generally available to the public other than as a result of an unauthorized
disclosure; (ii) becomes available to Executive in a manner that is not in
contravention of applicable law from a source that is not bound by a
confidential relationship with Company or by a confidentiality or other similar
agreement; (iii) was known to Executive on a non-confidential basis and not in
contravention of applicable law or a confidentiality or other similar agreement
before its disclosure to Executive by Company or one of Company's or (iv) is
required to be disclosed by law, court order or other legal process; provided,
however, that in the event disclosure is required by law, Executive shall
provide Company with prompt notice of such requirement so that Company may seek
an appropriate protective order prior to any such required disclosure by
Executive. Confidential Information may include, but not be limited to, future
business plans, licensing strategies, advertising campaigns, information
regarding customers, employees and independent contractors and the terms and
conditions of this Agreement.
7. Non-Solicitation.
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A. Customers. During Executive's employment with Company and for a period
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of twelve (12) months thereafter (the "Restricted Period"), Executive shall not,
on his own behalf or on behalf of any person, firm, partnership, association,
corporation or business organization, entity or enterprise ("Other Entity"),
solicit, contact, call upon, communicate with or attempt to communicate with any
customer of Company, or any representative of any customer of Company, with a
view to providing products and/or services in the Business of Company provided
that the restrictions set forth in this Section 7.A. shall apply only to
customers of Company, or representatives of customers of Company, with which
Company had contact during the two (2) year period immediately preceding
termination of his employment with Company (or shorter period if Executive has
not then been engaged by Company for two (2) years).
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B. Employees/Independent Contractors. During the Restricted Period,
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Executive shall not, on his own behalf or on behalf of any Other Entity, recruit
or hire, or attempt to recruit or hire, any employees or independent contractors
of Company who were employed or engaged by Company, as the case may be, during
the one (1) year period prior to the termination of his employment with Company
(or shorter period if Executive has not then been engaged by Company for one (1)
year).
8. Non-Competition. During the Restricted Period, Executive shall not on
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his own behalf or on behalf of any Other Entity, perform the duties and services
Executive performs for Company for any Other Entity in the Business (as defined
above) within the United States (the "Territory").
9. Acknowledgment. The parties hereto agree that: (i) the Restricted
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Period and Territory contained in this Agreement are reasonably necessary for
the protection of Company's legitimate business interests and that the Territory
is the area in which Executive shall perform (or currently perform) services for
Company; (ii) by having access to information concerning employees, independent
contractors and customers of Company, Executive shall obtain a competitive
advantage as to such parties; (iii) Executive's covenants and agreements
contained in this Agreement are reasonably necessary to protect the interests of
Company in whose favor said covenants and agreements are imposed in light of the
nature of Company's Business and Executive's involvement in such Business; (iv)
the restrictions imposed by this Agreement are not greater than are necessary
for the protection of Company in light of the substantial harm that Company
shall suffer should Executive breach any of the provisions of said covenants or
agreements and (v) Executive's covenants and agreements contained in this
Agreement form material consideration for this Agreement, the Acquisition
Agreement and Executive's employment by Company.
10. Remedy for Breach. Executive agrees that the remedies at law of
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Company for any actual or threatened breach by Executive of the covenants
contained in Sections 6. through 8. of this Agreement would be inadequate and
that Company shall be entitled to specific performance of the covenants in such
paragraphs, including entry of an ex parte, temporary restraining order in state
or federal court, preliminary and permanent injunctive relief against activities
in violation of such paragraphs, or both, or other appropriate judicial remedy,
writ or order, in addition to any damages and legal expenses (including
attorney's fees) which Company may be legally entitled to recover. Executive
acknowledges and agrees that the covenants contained in Sections 6. through 8.
of this Agreement shall be construed as agreements independent of any other
provision of this or any other agreement between the parties hereto, and that
the existence of any claim or cause of action by Executive against Company,
whether predicated upon this or any other agreement, shall not constitute a
defense to the enforcement by Company of said covenants.
11. No Prior Agreements. Executive hereby represents and warrants to
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Company that the execution of this Agreement by Executive and Executive's
employment by Company and the
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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.
12. Assignment; Binding Effect. Executive understands that Executive has
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been selected for employment by Company on the basis of Executive's personal
qualifications, experience and skills. Executive agrees, therefore, that
Executive cannot assign all or any portion of Executive's performance under this
Agreement. Subject to the preceding two (2) sentences and the express
provisions of Section 13. below, this Agreement shall be binding upon, inure to
the benefit of and be enforceable by the parties hereto and their respective
heirs, legal representatives, successors and assigns.
13. Complete Agreement. This Agreement is not a promise of future
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employment. Executive has no oral representations, understandings or agreements
with Company or any of its officers, directors or representatives covering the
same subject matter as this 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 Executive,
and no term of this Agreement may be waived except by writing signed by the
party waiving the benefit of such term.
14. Notice. Whenever any notice is required hereunder, it shall be given
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in writing addressed as follows:
To Company: InfoCure Corporation
Corporate Headquarters
0000 Xxx Xxxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxxxx X.Fine
With a copy to: Xxxxxx, Xxxxxxx & Xxxxxx, L.L.P.
1600 Atlanta Financial Center
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Xx., Esq.
To Executive: Xxxxxxx Xxxxxxx
_________________________
_________________________
With a copy to: Xxxxxxxx, Kill & Olick
1251 Avenue of the Americas
Xxx Xxxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxx, Esq.
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 14.
15. Severability; Headings. If any portion of this Agreement is held
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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.
16. Arbitration. Except as otherwise set forth in Sections 4.B.(iii) and
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6. through 10., any dispute, controversy or claim arising out of, relating to or
in connection with, this Agreement, or the breach, termination or validity
thereof shall be finally settled by arbitration conducted in accordance with
this Section. The arbitration shall be conducted in accordance with the Rules
of the American Arbitration Association (the "AAA") in effect at the time of the
arbitration, except as they may be modified herein or by mutual agreement of the
parties. The seat of the arbitration shall be Atlanta, Georgia, and each party
hereto irrevocably submits to the jurisdiction of the arbitration panel in
Atlanta, Georgia. The arbitration shall be conducted by three (3) arbitrators.
The party initiating arbitration (the "Claimant") shall identify its arbitrator
within twenty (20) days of receipt of the Request and shall notify the Claimant
of such appointment in writing. If the Respondent fails to identify an
arbitrator within such twenty (20) day period, the arbitrator named in the
Request shall decide the controversy or claim as the sole arbitrator.
Otherwise, the two (2) arbitrators appointed by the parties shall appoint a
third (3rd) arbitrator within twenty (20) days after the Respondent has notified
Claimant of the appointment of the Respondent's arbitrator. When the third
(3rd) arbitrator has accepted the appointment, the two (2) party-appointed
arbitrators shall promptly notify the parties of the appointment. If the two
(2) arbitrators appointed by the parties fail or are unable to so appoint a
third (3rd) arbitrator, then the appointment of the third (3rd) arbitrator shall
be made by the AAA, which shall promptly notify the parties of the appointment.
The third (3rd) arbitrator shall act as chair of the panel. The arbitration
award shall be in writing and shall be final and binding on the parties. The
award may include an award of costs, including reasonable attorneys' fees and
disbursements. Judgment upon the award may be entered by any court having
jurisdiction thereof or having jurisdiction over the parties or their assets.
Notwithstanding the foregoing, the parties may apply to any court of competent
jurisdiction for an ex parte temporary restraining order, preliminary
injunction, or other interim or conservatory relief, as necessary, without
breach of this Section and without any abridgment of the powers of the
arbitrators.
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17. Governing Law. This Agreement shall in all respects be construed
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according to the laws of the State of Georgia.
18. Counterparts. This Agreement may be executed simultaneously in two
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(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.
[SIGNATURES BEGIN ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
COMPANY:
InfoCure Corporation
By:______________________________
Its:__________________________
EXECUTIVE:
---------------------------------(SEAL)
Xxxxxxx Xxxxxxx
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EXHIBIT A
TO EMPLOYMENT AGREEMENT
Duties of Executive
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Overall Responsibility:
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EXHIBIT B
TO EMPLOYMENT AGREEMENT
Incentive Compensation
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