EMPLOYMENT AGREEMENT
Exhibit 10.2
Execution Copy
This EMPLOYMENT AGREEMENT (this “Agreement”) is made and entered into as of this
17th day of November 2008, by and between Spheris Inc., a Delaware corporation (the
“Company”), and Xxx Xxxx (the “Employee”).
W I T N E S S E T H :
WHEREAS, the Company desires to employ Employee and to enter into this Agreement embodying the
terms of such employment, and Employee desires to enter into this Agreement and to accept such
employment, subject to the terms and provisions of this Agreement.
NOW, THEREFORE, in consideration of the promises and mutual covenants contained herein and for
other good and valuable consideration, the receipt and sufficiency of which are mutually
acknowledged, the Company and Employee hereby agree as follows:
Section 1. Definitions.
(a) “Accrued Obligations” shall mean (i) all accrued but unpaid Base Salary through
the date of termination of Employee’s employment, (ii) any unpaid or unreimbursed expenses incurred
in accordance with Section 7 below, and (iii) any benefits provided under the Company’s employee
benefit plans upon a termination of employment, in accordance with the terms contained therein.
(b) “Agreement” shall have the meaning set forth in the preamble hereto.
(c) “Annual Bonus” shall have the meaning set forth in Section 4(b) below.
(d) “Base Salary” shall mean the salary provided for in Section 4(a) below or any
increased salary granted to Employee pursuant to Section 4(a).
(e) “Board” shall mean the Board of Directors of the Parent.
(f) “Cause” shall mean (i) Employee’s act(s) of gross negligence or willful misconduct
in the course of Employee’s employment hereunder that is or could reasonably be expected to be
materially injurious to the Company or any other member of the Company Group, (ii) willful failure
or refusal by Employee to perform in any material respect his duties or responsibilities, (iii)
misappropriation by Employee of any assets or business opportunities of the Company or any other
member of the Company Group, (iv) embezzlement committed by Employee, or at his direction, (v)
Employee’s conviction of, indictment for, or pleading “guilty” or “ no contest” to, (x) a felony or
(y) any other criminal charge that has, or could be reasonably expected to have, an adverse and
material impact on the performance of Employee’s duties to the Company or any other member of the
Company Group or otherwise result in material injury to the reputation or business of the Company
or any other member of the Company Group, (vi) any material violation of the written policies of
the Company, including but not limited to those relating to sexual harassment or business conduct,
and those otherwise set forth in the manuals or
written statements of policy of the Company, or (vii) Employee’s material breach of Section 9
of this Agreement.
(g) “Code” shall mean the Internal Revenue Code of 1986, as amended.
(h) “Commencement Date” shall mean November 17, 2008.
(i) “Company” shall have the meaning set forth in the preamble hereto.
(j) “Company Group” shall mean the Parent together with any direct or indirect
subsidiary of the Parent, including the Company.
(k) “Compensation Committee” shall mean the Compensation Committee of the Board.
(l) “Competitive Activities” shall mean any business activities in which the Company
or any other member of the Company Group engages (or has committed plans to engage, and which plans
Employee has knowledge of) during the Term of Employment.
(m) “Confidential Information” shall mean confidential or proprietary trade secrets,
client lists, client identities and information, information regarding service providers,
investment methodologies, marketing data or plans, sales plans, management organization
information, operating policies or manuals, business plans or operations or techniques, financial
records or data, or other financial, commercial, business, or technical information (i) relating to
the Company or any other member of the Company Group or (ii) that the Company or any other member
of the Company Group may receive belonging to suppliers, customers, or others who do business with
the Company or any other member of the Company Group, but shall exclude any information that is in
the public domain or has become generally available to the public or hereafter enters the public
domain or becomes generally available to the public, in each case without the breach by Employee of
Section 9(a) below.
(n) “Delay Period” shall have the meaning set forth in Section 14 below.
(o) “Developments” shall have the meaning set forth in Section 9(e) below.
(p) “Disability” shall mean any physical or mental disability or infirmity of the
Employee that prevents the performance of Employee’s duties for a period of (i) ninety (90)
consecutive days or (ii) one hundred twenty (120) non-consecutive days during any twelve (12) month
period. Any question as to the existence, extent, or potentiality of Employee’s Disability upon
which Employee and the Company cannot agree shall be determined by a qualified, independent
physician selected by the Company and approved by Employee (which approval shall not be
unreasonably withheld). The determination of any such physician shall be final and conclusive for
all purposes of this Agreement.
(q) “Employee” shall have the meaning set forth in the preamble hereto.
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(r) “Good Reason” shall mean, without Employee’s consent, (i) a material diminution in
Employee’s title, duties, or responsibilities, (ii) any reduction in Base Salary, (iii) a material
reduction in Annual Bonus opportunity (other than pursuant to an across-the-board reduction
applicable to all similarly situated executives), (iv) the failure of the Company to pay any
compensation hereunder when due, (v) the relocation of Employee’s principal place of employment (as
provided in Section 3(c) hereof) more than fifty (50) miles from its current location, or (vi) the
failure to issue to Employee, on or before February 1, 2009, shares of common stock representing
four percent (4%) of then fully-diluted share capital of [Parent]. Notwithstanding the foregoing,
during the Term of Employment, in the event that the Board reasonably believes that Employee may
have engaged in conduct that could constitute Cause hereunder, the Board may, in its sole and
absolute discretion, suspend Employee from performing his duties hereunder, and in no event shall
any such suspension constitute an event pursuant to which Employee may terminate employment with
Good Reason; provided, that no such suspension shall alter the Company’s obligations under this
Agreement during such period of suspension.
(s) “Interfering Activities” shall mean (i) soliciting, inducing or knowingly
encouraging, or in any manner attempting to encourage, solicit, or induce, any individual employed
by, or individual or entity providing consulting services to, the Company or any other member of
the Company Group to terminate such employment or consulting services; provided, that the foregoing
shall not be violated by general advertising not targeted at employees or consultants of the
Company or any other member of the Company Group; (ii) hiring any individual who was employed by
the Company or any other member of the Company Group within the six (6) month period prior to the
date of such hiring; or (iii) encouraging, soliciting, or inducing, or in any manner attempting to
encourage, solicit, or induce, any customer, supplier, licensee, or other business relation of the
Company or any other member of the Company Group to cease doing business with or materially reduce
the amount of business conducted with the Company or any other member of the Company Group, or in
any way materially interfering with the relationship between any such customer, supplier, licensee,
or business relation and the Company or any other member of the Company Group.
(t) “Parent” shall mean Spheris Holding III, Inc, the Company’s ultimate parent.
(u) “Person” shall mean any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust (charitable or non-charitable),
unincorporated organization, or other form of business entity.
(v) “Release Expiration Date” shall mean the date that is twenty-one (21) days
following the date upon which the Company timely delivers Employee the release contemplated in
Section 8(g) below, or in the event that such termination of employment is “in connection with an
exit incentive or other employment termination program” (as such phrase is defined in the Age
Discrimination in Employment Act of 1967), the date that is forty-five (45) days following such
delivery date.
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(w) “Restricted Area” shall mean any State of the United States of America or any
other jurisdiction in which the Company or any other member of the Company Group engages (or has
committed plans to engage, and which plans Employee has knowledge of) in business during the Term
of Employment.
(x) “Restricted Period” shall mean the period commencing on the Closing Date and
extending to the eighteen (18) month anniversary of Employee’s termination of employment for any
reason.
(y) “Severance Term” shall mean the eighteen (18) month period following Employee’s
termination by the Company without Cause (other than by reason of death or Disability) or
resignation for Good Reason.
(z) “Term of Employment” shall mean the period specified in Section 2 below.
Section 2. Acceptance and Term of Employment.
The Company agrees to employ Employee, and Employee agrees to serve the Company, on the terms
and conditions set forth herein. The Term of Employment shall commence on the Commencement Date
and shall continue until terminated as provided in Section 8 hereof.
Section 3. Position, Duties, and Responsibilities; Place of Performance.
(a) During the Term of Employment, Employee shall be employed and serve as a member of the
Board and as the Chief Executive Officer of the Company (together with such other position or
positions consistent with Employee’s title as the Board shall specify from time to time) and shall
have such duties typically associated with such title. Employee also agrees to serve as an officer
and/or director of any parent or subsidiary of the Company, in each case without additional
compensation.
(b) Employee shall devote his full business time, attention, skill, and best efforts to the
performance of his duties under this Agreement and shall not engage in any other business or
occupation during the Term of Employment, including, without limitation, any activity that (x)
conflicts with the interests of the Company or any other member of the Company Group, (y)
interferes with the proper and efficient performance of Employee’s duties for the Company, or (z)
interferes with Employee’s exercise of judgment in the Company’s best interests. Notwithstanding
the foregoing, nothing herein shall preclude Employee from (i) serving, with the prior written
consent of the Board (which consent shall not be unreasonably withheld, delayed or conditioned), as
a member of the boards of directors or advisory boards (or their equivalents in the case of a
non-corporate entity) of non-competing businesses and charitable organizations, (ii) engaging in
charitable activities and community affairs, and (iii) managing his personal investments and
affairs; provided, however, that the activities set out in clauses (i), (ii), and (iii) shall be
limited by Employee so as not to materially interfere, individually or in the aggregate, with the
performance of his duties and responsibilities hereunder.
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(c) Employee’s principal place of employment shall be in Franklin, Tennessee, although
Employee understands and agrees that he may be required to travel from time to time for business
reasons.
Section 4. Compensation. During the Term of Employment, Employee shall be entitled to the
following compensation:
(a) Base Salary. Employee shall be paid an annualized Base Salary, payable in
accordance with the regular payroll practices of the Company, of not less than $400,000, with
increases, if any, as may be approved in writing by the Board or the Compensation Committee.
(b) Annual Bonus. Employee shall be eligible for an annual incentive bonus award
determined by the Board in respect of each fiscal year during the Term of Employment (the
“Annual Bonus”). The Annual Bonus for each fiscal year shall be an amount of up to 100% of
Base Salary, with the actual Annual Bonus payable being based upon the level of achievement of
annual Company and individual performance objectives for such fiscal year, as determined by the
Board or the Compensation Committee and communicated in writing to Employee. The Annual Bonus
shall be paid to Employee at the same time as annual bonuses are generally payable to other senior
executives of the Company; provided, however, that the Annual Bonus must be paid no later than 21/2
months following the end of the year to which the performance period relates.
Section 5. Employee Benefits.
During the Term of Employment, Employee shall be entitled to participate in health, insurance,
retirement, and other benefits provided to other senior executives of the Company. Employee shall
also be entitled to the same number of holidays, vacation days, and sick days, as well as any other
benefits, in each case as are generally allowed to senior executives of the Company in accordance
with the Company policy as in effect from time to time. Notwithstanding the foregoing, during the
Term of Employment, Employee shall be entitled to three (3) weeks paid vacation or such longer time
as may hereafter be provided under any plans, practices, programs or policies of the Company
available to other senior executives of the Company.
Section 6. Key-Man Insurance.
At any time during the Term of Employment, the Company shall have the right to insure the life
of Employee for the sole benefit of the Company, in such amounts, and with such terms, as it may
determine. All premiums payable thereon shall be the obligation of the Company. Employee shall
have no interest in any such policy, but agrees to cooperate with the Company in procuring such
insurance by submitting to physical examinations, supplying all information required by the
insurance company, and executing all necessary documents, provided that no financial obligation is
imposed on Employee by any such documents.
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Section 7. Reimbursement of Business Expenses.
(a) General. Employee is authorized to incur reasonable business expenses in carrying
out his duties and responsibilities under this Agreement, and the Company shall promptly reimburse
him for all such reasonable business expenses, subject to documentation in accordance with the
Company’s policy, as in effect from time to time.
(b) Allowance. During the Term of Employment, the Company will pay to Employee a
monthly allowance of no more than $3,000 in order to cover housing and related expenses.
(c) 409A. To the extent that any right to reimbursement of expenses under this
Agreement constitutes nonqualified deferred compensation (within the meaning of Section 409A of the
Code), such expense reimbursement shall be made by the Company no later than the last day of the
taxable year following the taxable year in which such expense was incurred by Employee.
Section 8. Termination of Employment.
(a) General. The Term of Employment shall terminate earlier than as provided in
Section 2 hereof upon the earliest to occur of (i) Employee’s death, (ii) a termination by reason
of a Disability, (iii) a termination by the Company with or without Cause, and (iv) a termination
by Employee with or without Good Reason. Upon any termination of Employee’s employment for any
reason, except as may otherwise be requested by the Company in writing and agreed upon in writing
by Employee, Employee shall resign from any and all directorships, committee memberships, and any
other positions Employee holds with the Company or any other member of the Company Group.
Notwithstanding anything herein to the contrary, the payment (or commencement of a series of
payments) hereunder of any nonqualified deferred compensation (within the meaning of Section 409A
of the Code) upon a termination of employment shall be delayed until such time as Employee has also
undergone a “separation from service” as defined in Treas. Reg. 1.409A-1(h), at which time such
nonqualified deferred compensation (calculated as of the date of Employee’s termination of
employment hereunder) shall be paid (or commence to be paid) to Employee on the schedule set forth
in this Section 8 as if Employee had undergone such termination of employment (under the same
circumstances) on the date of his ultimate “separation from service.”
(b) Termination Due to Death or Disability. Employee’s employment shall terminate
automatically upon his death. The Company may terminate Employee’s employment immediately upon the
occurrence of a Disability, such termination to be effective upon Employee’s receipt of written
notice of such termination. In the event Employee’s employment is terminated due to his death or
Disability, Employee or his estate or his beneficiaries, as the case may be, shall be entitled to:
(i) The Accrued Obligations; and
(ii) Any unpaid Annual Bonus in respect of any completed fiscal year that has ended
prior to the date of such termination, which amount shall be paid at such
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time annual bonuses are paid to other senior executives of the Company, but in no event
later than one day prior to the date that is 21/2 months following the last day of the fiscal
year in which such termination occurred.
Following such termination of Employee’s employment by reason of death or Disability, except as set
forth in this Section 8(b), Employee shall have no further rights to any compensation or any other
benefits under this Agreement.
(c) Termination by the Company for Cause.
(i) The Company may terminate Employee’s employment at any time for Cause, effective
upon Employee’s receipt of written notice of such termination, which written notice, to be
effective, must be provided to Employee within sixty (60) days of the occurrence of such
event or conduct constituting Cause hereunder; provided, however, that with respect to any
Cause termination relying on clause (ii), (vi) or (vii) of the definition of Cause set forth
in Section 1(f) hereof, Employee shall be given not less than ten (10) days’ written notice
by the Board of the Company’s intention to terminate him for Cause, such notice to state in
detail the particular act or acts or failure or failures to act that constitute the grounds
on which the proposed termination for Cause is based, and such termination shall be
effective at the expiration of such ten (10) day notice period unless Employee has fully
cured such act or acts or failure or failures to act that give rise to Cause during such
period.
(ii) In the event the Company terminates Employee’s employment for Cause, he shall be
entitled only to the Accrued Obligations. Following such termination of Employee’s
employment for Cause, except as set forth in this Section 8(c)(ii), Employee shall have no
further rights to any compensation or any other benefits under this Agreement.
(d) Termination by the Company without Cause. The Company may terminate Employee’s
employment at any time without Cause, effective upon Employee’s receipt of written notice of such
termination. In the event Employee’s employment is terminated by the Company without Cause (other
than due to death or Disability), Employee shall be entitled to:
(i) The Accrued Obligations;
(ii) Any unpaid Annual Bonus in respect of any completed fiscal year that has ended
prior to the date of such termination, which amount shall be paid at such time annual
bonuses are paid to other senior executives of the Company, but in no event later than one
day prior to the date that is 21/2 months following the last day of the fiscal year in which
such termination occurred;
(iii) A pro-rata bonus for the year in which such termination occurs, computed as the
product of (x) the Annual Bonus in respect of such year and (y) a fraction, the numerator of
which is the number of days in the current fiscal year through the date of such termination,
and the denominator of which is 365, which amount shall be paid at such time annual bonuses
are paid to other senior executives of the Company, but
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in no event later than one day prior to the date that is 21/2 months following the last
day of the fiscal year in which such termination occurred;
(iv) Continuation of payment of Base Salary during the Severance Term, payable in
accordance with the Company’s regular payroll practices; and
(v) Continuation, during the Severance Term, of the health benefits provided to
Employee and his covered dependants under the Company’s health plans, it being understood
and agreed that (A) Employee shall be required to pay that portion of the cost of such
health benefits as Employee was required to pay (including through customary deductions from
Employee’s paycheck) as of the date of Employee’s termination of employment with the
Company, and (B) notwithstanding the foregoing, the Company’s obligation to provide such
continuation of benefits shall terminate prior to the expiration of the Severance Term in
the event that Employee becomes eligible to receive any health benefits while employed by or
providing service to, in any capacity, any other business or entity during the Severance
Term; provided, however, that as a condition of the Company’s providing the continuation of
health benefits described herein, the Company may require Employee to elect continuation
coverage under COBRA (in which case, the Company shall pay the applicable portion of
Employee’s COBRA premiums in connection therewith).
Notwithstanding the foregoing, the payments and benefits described in subsections (ii), (iii), and
(iv) above shall immediately terminate, and the Company shall have no further obligations to
Employee with respect thereto, in the event that Employee breaches any provision of Section 9
hereof. Following such termination of Employee’s employment by the Company without Cause, except
as set forth in this Section 8(d), Employee shall have no further rights to any compensation or any
other benefits under this Agreement.
(e) Termination by Employee with Good Reason. Employee may terminate his employment
with Good Reason by providing the Company thirty (30) days’ written notice setting forth in
reasonable specificity the event that constitutes Good Reason, which written notice, to be
effective, must be provided to the Company within ninety (90) days of the occurrence of such event.
During such thirty (30) day notice period, the Company shall have a cure right (if curable), and
if not cured within such period, Employee must terminate within five (5) business days of the
expiration of such cure period, and Employee shall be entitled to the same payments and benefits as
provided in Section 8(d) above for a termination by the Company without Cause, subject to the same
conditions on payment and benefits as described in Section 8(d) above. Following such termination
of Employee’s employment by Employee with Good Reason, except as set forth in this Section 8(e),
Employee shall have no further rights to any compensation or any other benefits under this
Agreement.
(f) Termination by Employee without Good Reason. Employee may terminate his
employment without Good Reason by providing the Company thirty (30) days’ written notice of such
termination. In the event of a termination of employment by Employee under this Section 8(f),
Employee shall be entitled only to the Accrued Obligations. In the event of termination of
Employee’s employment under this Section 8(f), the Company may, in its sole
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and absolute discretion, by written notice accelerate such date of termination without
changing the characterization of such termination as a termination by Employee without Good Reason.
Following such termination of Employee’s employment by Employee without Good Reason, except as set
forth in this Section 8(f), Employee shall have no further rights to any compensation or any other
benefits under this Agreement.
(g) Release. Notwithstanding any provision herein to the contrary, the Company may
require that, prior to payment of any amount or provision of any benefit pursuant to subsection (d)
of this Section 8 (other than the Accrued Obligations), Employee shall have executed, on or prior
to the Release Expiration Date, a customary general release in favor of the Company Group in such
form as is reasonably required by the Company, and any waiting periods contained in such release
shall have expired. To the extent that the Company requires execution of such release, the Company
shall deliver such release to Employee within ten (10) business days following the termination of
Employee’s employment hereunder, and the Company’s failure to deliver such release prior to the
expiration of such ten (10) business day period shall constitute a waiver of any requirement to
execute such release. Assuming a timely delivery of the release by the Company, if Employee fails
to execute such release on or prior to the Release Expiration Date or timely revokes his acceptance
of such release thereafter, Employee shall not be entitled to any payments or benefits pursuant to
subsection (d) of this Section 8 (other than the Accrued Obligations). Notwithstanding anything
herein to the contrary, in any case where the date of termination and the Release Expiration Date
fall in two separate taxable years, any payments required to be made to Employee that are treated
as deferred compensation for purposes of Section 409A of the Code shall be made in the later
taxable year.
Section 9. Restrictive Covenants. Employee acknowledges and agrees that (A) the agreements
and covenants contained in this Section 9 are (i) reasonable and valid in geographical and temporal
scope and in all other respects and (ii) essential to protect the value of the business and assets
of the Company Group, and (B) by his employment with the Company, Employee will obtain knowledge,
contacts, know-how, training, and experience, and there is a substantial probability that such
knowledge, know-how, contacts, training, and experience could be used to the substantial advantage
of a competitor of the Company Group and to the substantial detriment of the Company Group.
(a) Confidential Information. At any time during and for a period of eighteen (18)
months after the end of the Term of Employment, without the prior written consent of the Board,
except to the extent required by an order of a court having jurisdiction or under subpoena from an
appropriate government agency, in which event, Employee shall use his best efforts to consult with
the Board prior to responding to any such order or subpoena, and except as required in the
performance of his duties hereunder, Employee shall not disclose to or use for the benefit of any
third party any Confidential Information.
(b) Non-Competition. Employee covenants and agrees that during the Restricted Period,
Employee shall not, directly or indirectly, individually or jointly, own any interest in, operate,
join, control, participate as a partner, director, principal, officer, or agent of, enter into the
employment of, act as a consultant to, or perform any services for, any Person (other than the
Company or any other member of the Company Group), that engages in any
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Competitive Activities within the Restricted Area. Notwithstanding anything herein to the
contrary, this Section 9(b) shall not prevent Employee from acquiring as an investment securities
representing not more than three percent (3%) of the outstanding voting securities of any publicly
held corporation.
(c) Non-Solicitation; Non-Interference. During the Restricted Period, Employee shall
not, directly or indirectly, for his own account or for the account of any other Person, engage in
Interfering Activities.
(d) Return of Documents. In the event of the termination of Employee’s employment for
any reason, Employee shall deliver to the Company all of (i) all property of the Company or any
other member of the Company Group and (ii) all documents and data of any nature and in whatever
medium of the Company or any other member of the Company Group, and he shall not take with him any
such property, documents, or data, or any reproduction thereof, or any documents containing or
pertaining to any Confidential Information.
(e) Works for Hire. Employee agrees that the Company shall own all right, title, and
interest throughout the world in and to any and all inventions, original works of authorship,
developments, concepts, know-how, improvements, and trade secrets, whether or not patentable or
registrable under copyright or similar laws, that Employee may solely or jointly conceive or
develop or reduce to practice, or cause to be conceived or developed or reduced to practice during
the Term of Employment, whether or not during regular working hours, provided they either (i)
relate at the time of conception or development to the actual or demonstrably proposed business or
research and development activities of any member of the Company Group; (ii) result from or relate
to any work performed for the Company or any member of the Company Group; or (iii) are developed
through the use of Confidential Information and/or Company resources or in consultation with any
personnel of the Company or any other member of the Company Group (collectively referred to as
“Developments”). Employee hereby assigns to the Company all right, title, and interest in
and to any and all of these Developments. Employee agrees to assist the Company, at the Company’s
expense, to further evidence, record, and perfect such assignments, and to perfect, obtain,
maintain, enforce, and defend any rights specified to be so owned or assigned. Employee hereby
irrevocably designates and appoints the Company and its agents as attorneys-in-fact to act for
Employee and on his behalf to execute and file any document and to do all other lawfully permitted
acts to further the purposes of the foregoing with the same legal force and effect as if executed
by Employee. In addition, and not in contravention of any of the foregoing, Employee acknowledges
that all original works of authorship that are made by him (solely or jointly with others) within
the scope of employment and that are protectable by copyright are “works made for hire,” as that
term is defined in the United States Copyright Act (17 U.S.C. § 101). To the extent allowed by
law, this includes all rights of paternity, integrity, disclosure, and withdrawal, and any other
rights that may be known or referred to as “moral rights.” To the extent Employee retains any such
moral rights under applicable law, Employee hereby waives such moral rights and consents to any
action consistent with the terms of this Agreement with respect to such moral rights, in each case,
to the full extent of such applicable law. Employee will confirm any such waivers and consents
from time to time as requested by the Company.
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(f) Blue Pencil. If any court of competent jurisdiction shall at any time deem the
duration or the geographic scope of any of the provisions of this Section 9 unenforceable, the
other provisions of this Section 9 shall nevertheless stand, and the duration and/or geographic
scope set forth herein shall be deemed to be the longest period and/or greatest size permissible by
law under the circumstances, and the parties hereto agree that such court shall reduce the time
period and/or geographic scope to permissible duration or size.
Section 10. Injunctive Relief.
Without limiting the remedies available to members of the Company Group, Employee acknowledges
that a breach of any of the covenants contained in Section 9 hereof may result in material
irreparable injury to the Company Group (or a member thereof) for which there is no adequate remedy
at law, that it will not be possible to measure damages for such injuries precisely and that, in
the event of such a breach or threat thereof, the Company (or any other member of the Company
Group) shall be entitled to obtain a temporary restraining order and/or a preliminary or permanent
injunction, without the necessity of proving irreparable harm or injury as a result of such breach
or threatened breach of Section 9 hereof, restraining Employee from engaging in activities
prohibited by Section 9 hereof or such other relief as may be required specifically to enforce any
of the covenants in Section 9 hereof. Notwithstanding any other provision to the contrary, the
Restricted Period shall be tolled during any period of violation of any of the covenants in Section
9(b) or (c) hereof and during any other period required for litigation during which the Company (or
any other member of the Company Group) seeks to enforce such covenants against Employee if it is
ultimately determined that Employee was in breach of such covenants.
Section 11. Representations and Warranties of Employee.
Employee represents and warrants to the Company that:
(a) Employee is entering into this Agreement voluntarily and that his employment hereunder and
compliance with the terms and conditions hereof will not conflict with or result in the breach by
him of any agreement to which he is a party or by which he may be bound;
(b) Employee has not violated, and in connection with his employment with the Company will not
violate, any non-solicitation, non-competition, or other similar covenant or agreement of a prior
employer by which he is or may be bound; and
(c) in connection with his employment with the Company, Employee will not use any confidential
or proprietary information he may have obtained in connection with employment with any prior
employer.
Section 12. Taxes.
The Company may withhold from any payments made under this Agreement all applicable taxes,
including but not limited to income, employment, and social insurance taxes, as shall be required
by law. Employee acknowledges and represents that the Company has not
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provided any tax advice to him in connection with this Agreement and that he has been advised
by the Company to seek tax advice from his own tax advisors regarding this Agreement and payments
that may be made to him pursuant to this Agreement, including specifically, the application of the
provisions of Section 409A of the Code to such payments.
Section 13. Set Off; Mitigation.
The Company’s obligation to pay Employee the amounts provided and to make the arrangements
provided hereunder shall not be subject to set-off, counterclaim, or recoupment of amounts owed by
Employee to the Company or its affiliates. Employee shall not be required to mitigate the amount
of any payment provided for pursuant to this Agreement by seeking other employment or otherwise,
and except as provided in Section 8(d)(iv) hereof, the amount of any payment provided for pursuant
to this Agreement shall not be reduced by any compensation earned as a result of Employee’s other
employment or otherwise.
Section 14. Delay in Payment; Separate Payments.
Notwithstanding any provision in this Agreement to the contrary, any payment otherwise
required to be made hereunder to the Employee at any date as a result of the termination of
Employee’s employment shall be delayed until the earlier of (i) the expiration of the six-month
period measured from the date of Employee’s “separation of service” with the Company, or (ii) the
date of Employee’s death (the “Delay Period”). On the first business day following the
expiration of the Delay Period, Employee shall be paid, in a single cash lump sum, an amount equal
to the aggregate amount of all payments delayed pursuant to the preceding sentence and any
remaining payments not so delayed shall continue to be paid pursuant to the payment schedule set
forth herein. Notwithstanding anything herein to the contrary, each payment in a series of
payments hereunder shall be deemed to be a separate payment for purposes of Section 409A of the
Code.
Section 15. Successors and Assigns; No Third-Party Beneficiaries.
(a) The Company. This Agreement shall inure to the benefit of the Company and its
respective successors and assigns. Neither this Agreement nor any of the rights, obligations, or
interests arising hereunder may be assigned by the Company without Employee’s prior written consent
(which shall not be unreasonably withheld, delayed, or conditioned), to a Person other than an
affiliate or parent entity of the Company, or their respective successors; provided, however, that
in the event of the merger or consolidation, or transfer or sale of all or substantially all of the
assets, of the Company with or to any other individual or entity, this Agreement shall, subject to
the provisions hereof, be binding upon and inure to the benefit of such successor, and such
successor shall discharge and perform all the promises, covenants, duties, and obligations of the
Company hereunder, it being agreed that in such circumstances, the consent of Employee shall not be
required in connection therewith.
(b) Employee. Employee’s rights and obligations under this Agreement shall not be
transferable by Employee by assignment or otherwise, without the prior written consent of the
Company; provided, however, that if Employee shall die, all amounts then payable to
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Employee hereunder shall be paid in accordance with the terms of this Agreement to Employee’s
devisee, legatee, or other designee, or if there be no such designee, to Employee’s estate.
(c) No Third-Party Beneficiaries. Except as otherwise set forth in Section 8(b) or
Section 15(b) hereof, nothing expressed or referred to in this Agreement will be construed to give
any Person other than the Company, the other members of the Company Group, and Employee any legal
or equitable right, remedy, or claim under or with respect to this Agreement or any provision of
this Agreement.
Section 16. Waiver and Amendments.
Any waiver, alteration, amendment, or modification of any of the terms of this Agreement shall
be valid only if made in writing and signed by each of the parties hereto; provided, however, that
any such waiver, alteration, amendment, or modification is consented to on the Company’s behalf by
the Board. No waiver by either of the parties hereto of their rights hereunder shall be deemed to
constitute a waiver with respect to any subsequent occurrences or transactions hereunder unless
such waiver specifically states that it is to be construed as a continuing waiver.
Section 17. Severability.
If any covenants or such other provisions of this Agreement are found to be invalid or
unenforceable by a final determination of a court of competent jurisdiction, (a) the remaining
terms and provisions hereof shall be unimpaired, and (b) the invalid or unenforceable term or
provision hereof shall be deemed replaced by a term or provision that is valid and enforceable and
that comes closest to expressing the intention of the invalid or unenforceable term or provision
hereof.
Section 18. Governing Law and Jurisdiction.
This Agreement is governed by and is to be construed under the laws of the State of Tennessee,
without regard to conflict of laws rules. Any dispute or claim arising out of or relating to this
Agreement or claim of breach hereof (other than claims for injunctive relief, which shall be
governed by Section 10 hereof) shall be brought exclusively in the Federal court in the State of
Tennessee. By execution of the Agreement, the parties hereto, and their respective affiliates,
consent to the exclusive jurisdiction of such court, and waive any right to challenge jurisdiction
or venue in such court with regard to any suit, action, or proceeding under or in connection with
the Agreement. Each party to this Agreement also hereby waives any right to trial by jury in
connection with any suit, action, or proceeding under or in connection with this Agreement.
Section 19. Notices.
(a) Every notice or other communication relating to this Agreement shall be in writing, and
shall be mailed to or delivered to the party for whom or which it is intended at such address as
may from time to time be designated by it in a notice mailed or delivered to the other party as
herein provided; provided, that unless and until some other address be so
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designated, all notices and communications by Employee to the Company shall be mailed or
delivered to the Company at its principal executive office, and all notices and communications by
the Company to Employee may be given to Employee personally or may be mailed to Employee at
Employee’s last known address, as reflected in the Company’s records.
(b) Any notice so addressed shall be deemed to be given (i) if delivered by hand, on the date
of such delivery, (ii) if mailed by courier or by overnight mail, on the first business day
following the date of such mailing, and (iii) if mailed by registered or certified mail, on the
third business day after the date of such mailing.
Section 20. Section Headings.
The headings of the sections and subsections of this Agreement are inserted for convenience
only and shall not be deemed to constitute a part thereof or affect the meaning or interpretation
of this Agreement or of any term or provision hereof.
Section 21. Entire Agreement.
This Agreement, together with any exhibits attached hereto, constitutes the entire
understanding and agreement of the parties hereto regarding the employment of Employee. This
Agreement supersedes all prior negotiations, discussions, correspondence, communications,
understandings, and agreements between the parties relating to the subject matter of this
Agreement.
Section 22. Survival of Operative Sections.
Upon any termination of Employee’s employment, the provisions of Section 8 through Section 23
of this Agreement (together with any related definitions set forth in Section 1 hereof) shall
survive to the extent necessary to give effect to the provisions thereof.
Section 23. Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall be deemed to
be an original but all of which together shall constitute one and the same instrument. The
execution of this Agreement may be by actual or facsimile signature.
* * *
[Signatures to appear on the following page.]
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first above
written.
| SPHERIS INC. |
||||
| /s/ Xxxxx X. Xxxxxxxx | ||||
| By: | Xxxxx X. Xxxxxxxx | |||
| Title: | Chief Financial Officer | |||
| EMPLOYEE |
||||
| /s/ Xxx Xxxx | ||||
| Xxx Xxxx | ||||
[Signature Page to Kohl Employment Agreement]
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