INDEPENDENT CONTRACTOR AGREEMENT
Exhibit 10.1
In consideration of the premises, covenants and agreements contained herein, and as a
condition of being retained as an independent contractor by Spheris Holding III, Inc. its current
and future subsidiaries and affiliates (the “Company”), and your receipt of Confidential
Information while associated with the Company, you understand and agree with the Company as
follows:
1. Engagement. Company hereby engages you to render, as an independent contractor,
the services described on Exhibit A hereto and such other professional and consulting
services as may be agreed to in writing by the Company and you from time to time. You hereby accept
the engagement to provide such services to the Company on the terms and conditions set forth
herein.
2. Company Information. You recognize that during the course of your relationship
with the Company, you will have access to certain confidential or proprietary information regarding
the Company, its affiliates, its commercial partners, its clients and/or its customers, including,
but not limited to, technical and non-technical data, products and software (in object and source
code formats), designs, code, lists of actual or potential customers, business or financial data,
trade secrets and other information that is valuable to the Company or not generally known to the
public or to competitors of the Company (collectively, “Confidential Information”). “Confidential
Information” may also include any individually identifiable health information, including without
limitation, patient medical records. As a medical transcription service provider, Spheris requires
all of its consultants, independent contractors and employees to protect and maintain the privacy
and confidentiality of all data recorded, transcribed, printed or electronically transmitted or
stored. You agree that you will adhere to the strictest of confidentiality requirements for all
medical and personal information available to you in the performance of your services. At all
times during the term of your relationship with the Company and thereafter, you agree that you will
not disclose, reproduce, distribute or otherwise communicate to any third party any Confidential
Information except as may be required in the ordinary course of performing your duties as an
independent contractor. You agree not to use any Confidential Information of the Company to
design, develop, provide or market any software or service that would compete with any software or
service of the Company.
3. Return of Company Materials. During the term of your relationship with the
Company, you will not make, use or permit to be used any notes, memoranda, reports, lists, records,
specifications, software programs, data, documentation or other materials other than for the
benefit of the Company. If your relationship with the Company is terminated for any reason, you
agree that all above materials will be and remain exclusive property of the Company. You will
deliver all such materials to the Company in the event your relationship with the Company is
terminated for any reason or at the request of the Company, including without limitation, all
information relating to your services for the Company, the business of the Company, or containing
trade secrets or Confidential Information regarding the Company’s business.
4. Ownership of Propriety Inventions. The Company shall own all right, title and
interest in and to any inventions (whether or not patentable), works of authorship, discoveries,
methods, processes, designs, ideas and/or improvements, including any intellectual property rights
related thereto, conceived or reduced to practice, in whole or in part, whether alone or acting
with others, by you during the term of your relationship with the Company (collectively,
“Inventions”) that are developed in whole or in part (a) on the Company’s time or (b) while
utilizing, directly or indirectly, the Company’s equipment, supplies, facilities, trade secrets or
Confidential Information. You agree to assign, and hereby automatically assign, without further
consideration, to the Company any and all rights, title and interest in and to all Inventions;
provided however, that the foregoing assignment shall not apply to any Invention for which no
equipment, supplies, facilities, trade secrets or Confidential Information of the Company were used
and that was developed entirely on your own time, unless the Invention (i) relates to the Company’s
current or contemplated business or activities, (ii) relates to the Company’s actual or
demonstrably anticipated research or development or (iii) results from any work performed by you
for the Company. You agree to perform, upon the reasonable request of the Company, during or after
your relationship with the Company, such further acts as may be necessary or desirable to transfer,
perfect and defend the Company’s ownership of any Invention. You hereby irrevocably designate and
appoint the Company as your agent and attorney-in-fact, coupled with an interest, to act for and on
your behalf to execute and file any document and to do all other lawfully permitted acts to further
the foregoing with the same legal force and effect as if executed by you.
5. Work Made for Hire. You acknowledge and agree that any and all work product and
intellectual property developed or created by you as a result of the performance of your services
for the Company (collectively, “Work Product”) are the sole and exclusive property of the Company
and are “works made for hire” within the meaning of the
Individual Independent Contractor
United State Copyright Act of 1976, 17 U.S.C. §101 et seq. To the extent that any Work
Product does not qualify as a “work made for hire,” this Agreement will constitute an irrevocable
assignment by you to Company of the ownership of, and all intellectual property rights in, such
Work Product. The Company shall not be obligated to designate you as author of any design,
software, code, design, documentation, Work Product or any other work of authorship if distributed
publicly or otherwise, nor to make any distribution thereof.
6. Representations and Warranties. You represent and warrant that (a) you shall
perform your services hereunder in a timely, professional and workmanlike manner consistent with
industry standards; (b) all Work Product will be free of viruses, time bombs, back doors, hidden
features and other features that can impair the use and/or functionality of, or permit unauthorized
access to, the Work Product; (c) your performance of all of the terms of this Agreement do not and
will not breach any agreement to keep in confidence any confidential or proprietary information of
any third party acquired by you in confidence or in trust prior or subsequent to the date of this
Agreement; and (d) all Work Product developed by you, will be your original work and that you are
the lawful owner or licensee of any materials used by you in the performance of the services under
this Agreement.
7. Non-Competition Agreement. You acknowledge that you have ongoing obligations to
the Company in connection with that certain Confidential Information, Non-Competition and Invention
Assignment Agreement, dated July 3, 2003 (the “Non-Competition Agreement”), that you executed upon
your hire with the Company. You acknowledge that the provisions of the Non-Competition Agreement
shall continue in accordance with its terms. The Company acknowledges that the term of such
Non-Competition Agreement shall not be affected by this Independent Contractor Agreement.
8. Independent Contractor. This Agreement is not an employment agreement and you
understand that you are acting as an independent contractor. This Agreement shall not be deemed to
create a partnership or joint venture and neither party is the other’s agent, partner, employee or
representative. Neither party shall have any right, power or authority to act or create any
obligation, express or implied, on behalf of the other party, and nothing contained herein shall
give or is intended to give any rights of any kind to any third persons. You shall be solely
responsible for and shall hold the Company harmless for any and all claims for taxes, fees, costs
or expenses.
9. Use of Subcontractors. You shall not, without the prior written consent of the
Company, use or employ any subcontractors or independent contractors in the creation, development
or maintenance of the Work Product.
10. Relief. You acknowledge that any breach of this Agreement by you would cause
irreparable damage to the Company. You agree the Company shall be entitled to specific
performance, injunctive and equitable relief, without the necessity of posting a bond or showing
actual damages, in addition to all other remedies to prevent the violation of your obligations
under this Agreement.
11. Governing Law; Venue. This Agreement, the rights and obligations of the parties
hereto, and any claims or disputes relating to this Agreement shall be governed by and construed in
accordance with the laws of the State of Tennessee, excluding the choice-of-law rules thereof. Any
disputes arising out of this Agreement shall be filed only in Nashville, Tennessee, and the parties
hereto hereby consent and submit to the personal jurisdiction of said courts.
12. No Waiver. The failure of either party to this Agreement to exercise in any
instance any right under this Agreement or under law shall not constitute a waiver of any other
right in any other instance. This Agreement can be modified only by a subsequent written agreement
signed by you and the Company.
13. Assignment. This Agreement and any and all duties and obligations hereunder may
not be delegated, transferred or assigned by you without the prior express written consent of the
Company. Any delegation, transfer or assignment by you without such consent shall be void.
14. Severability. If any term or provision of this Agreement, including but not
limited to the covenants and restrictions of Section 7, be finally determined by a court of
competent jurisdiction to be void, invalid, unenforceable or contrary to law or equity for any
reason, including without limitation the time period, geographical area and scope of activity
covered by such covenant, the offending term or provision shall be modified and limited (or if
strictly necessary, deleted) only to the extent required to conform to the requirements of law and
the remainder of this Agreement (or, as the case may be, the application of such provisions to
other circumstances), and shall not be affected thereby but rather shall be enforced to the
greatest extent permitted by law.
Individual Independent Contractor
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15. Entire Agreement. This Agreement constitutes the entire, full and complete
understanding between the parties concerning the subject matter hereof and supersedes all prior or
contemporaneous oral or written agreements, communications, proposals, conditions, representations
and warranties, all of which are merged herein.
EACH PARTY ACKNOWLEDGES THAT, IN EXECUTING THIS AGREEMENT, IT HAS READ AND UNDERSTANDS ALL OF
THE TERMS AND PROVISIONS OF THIS AGREEMENT. THIS AGREEMENT SHALL NOT BE CONSTRUED AGAINST ANY
PARTY BY REASON OF THE DRAFTING OR PREPARATION HEREOF.
IN WITNESS WHEREOF, the parties have executed this Agreement on the dates below written.
| SPHERIS HOLDING III, INC. | XXXXXXX X. XXXXXXX | |||||
By:
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By: | |||||
| (Authorized Signature) | (Signature) | |||||
Name:
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Name: | |||||
| (Print or Type) | ||||||
Date:
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Title: | |||||
Individual Independent Contractor
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Exhibit
Transition Services
As consideration for transition services pursuant to this agreement, the Company agrees that
your outstanding equity grants in Spheris Holding III, Inc. shall continue to vest in accordance
with their terms during the term of this Agreement. Additionally, the Company shall reimburse you
for all reasonable out of pocket expenses incurred in the performance of your duties hereunder.
Except as reasonably necessary to assist in the transition of the matters set forth above to
responsible persons designated by Xxxxx Xxxxxxx, Chief Executive Officer of the Company, you may
refuse additional projects at your sole discretion. You agree to notify the Company of any such
refusal prior to accepting a project. The Company shall be solely responsible for ensuring all
proper authorization and appropriate information have been obtained with respect to a particular
project prior to requesting or calling upon you to perform services with respect to such project.
The term of this Agreement shall commence on the date hereof and terminate as of December 31, 2008,
unless otherwise mutually agreed by the parties.
Individual Independent Contractor
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