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EXHIBIT 10
EMPLOYMENT AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into as of September
1, 2000 by and between XXXXXXX X. XXXXXX (the "Executive") and MERGE
TECHNOLOGIES INCORPORATED, a Wisconsin corporation (the "Company").
R E C I T A L S:
A. The Company is engaged in the provision of medical diagnostic
imaging connectivity hardware, software and consulting solutions therefor, for
healthcare facilities. The business in which the Company is engaged in
time-to-time during the term of this Agreement, inclusive of those new lines of
business, if any, in which the Company is working toward entering from
time-to-time are hereinafter collectively referred to as the "Business"; and
B. The Company desires to employ the Executive and the Executive
desires to accept such employment;
NOW THEREFORE, in consideration of the promises, mutual
covenants and agreements contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Company and the Executive do hereby agree as follows:
1. Employment and Duties. On the terms and subject to the
conditions set forth in this Agreement, the Company agrees to employ the
Executive as the President and Chief Executive Officer of the Company to perform
such duties as are consistent with such position(s) as may be assigned, from
time to time, by the Board of Directors of the Company (the "Board") and to
render such additional services and discharge such other responsibilities as the
Board may, from time to time, stipulate.
2. Performance. The Executive accepts the employment described
in Section 1 of this Agreement and agrees to devote all of his working time and
efforts to the faithful and diligent performance of the services described
herein, including the performance of such other services and responsibilities as
the Board may, from time to time, stipulate. Without limiting the generality of
the foregoing, the Executive ordinarily shall devote not less than five days per
week except for regular business holidays observed by the Company, the
Executive's vacation days, and days allowed for sick leave to his employment
with respect to the Company Business.
3. Term. The term of employment under this Agreement shall
commence on September 1, 2000 (the "Commencement Date") and shall remain in
effect until terminated by either Executive or the Company by giving thirty (30)
days written notice of termination. The period of time in which Executive is
employed shall constitute the "Employment Period," and each calendar year or
portion of a calendar year during the Employment Period is hereinafter sometimes
referred to as a "Year." The parties agree that this Agreement may be terminated
by either party without cause or good reason, and without the obligation to pay
any severance pay, at any time, subject to the aforesaid notice requirement.
4. Salary. For all the services to be rendered by the
Executive hereunder, the Company agrees to pay a salary at a rate of no less
than sixteen thousand six hundred sixty-six and 67/100 dollars ($16,666.67) per
month ("Salary"), payable in the manner and frequency in which the Company's
payroll is customarily handled, and subject to annual review at the time annual
reviews of the salaries of other senior executive officers are to be conducted.
5. Bonus. During the Employment Period, the Executive shall be
eligible for an annual performance bonus of up to twenty-five percent (25%) of
Salary, dependent on achievement of defined performance targets. These targets
will be mutually agreed upon by the Executive and the Executive Committee of the
Board within sixty (60) days after commencement of each Year. For each Year the
annual performance
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bonus is to be paid, it shall be paid within thirty (30) days of the completion
of the year-end financial statements for that Year, but in no event later than
May 31 of the following year. Upon achievement of defined performance targets,
the Executive will be eligible to receive a pro-rated bonus equal to twenty-five
percent (25%) of the annual performance bonus for calendar year 2000, with
respect to operations of the Company during the calendar year 2000. Any dispute
as to whether Executive met the performance targets for a Year shall be
determined conclusively by the Executive Committee of the Board.
6. Paid Time Off. The Executive shall be entitled to
paid time off for vacation, illness, holiday and personal reasons in
accordance with the Company's paid time off policy at the rate offered to the
most senior employees of the Company with the longest tenure.
7. Relocation Allowance. Should the Executive, within
eighteen (18) months of Commencement Date, move his permanent residence at least
thirty-five (35) miles closer to the Company's offices in Milwaukee, then the
Company will reimburse Executive's relocation costs, up to a maximum of twenty
thousand dollars ($20,000).
8. Insurance. During the Employment Period, the
Company shall be entitled to procure life insurance for the Company's
sole benefit and at the Company's sole cost and the Executive agrees to
cooperate in obtaining such insurance.
9. Disability Benefit. If at any time during the
Employment Period the Executive is permanently unable to perform fully his
duties hereunder by reason of illness, accident, or other disability (as
confirmed by competent medical evidence by a physician selected by the Executive
Committee), the Executive shall be entitled to receive periodic payments of
Salary to which he would otherwise be entitled pursuant to Section 4 of this
Agreement by reason of his employment for a period of two (2) months.
Notwithstanding the foregoing provision (i) the amounts payable to the Executive
pursuant to this Section 9 shall be reduced by any amounts received by the
Executive with respect to any such incapacity pursuant to any insurance policy,
plan, or other employee benefit provided to the Executive by the Company; and
(ii) in no event will the terms of this Agreement supersede any health or
disability benefit to which Executive is entitled under applicable state or
federal law.
10. Executive Options. The Executive shall be granted
options to acquire two hundred twenty thousand (220,000) shares of the Company's
common stock at the closing market price (the "Strike Price") at the end of the
day on the date immediately preceding the Commencement Date. These options will
vest at the rate of twenty-five percent (25%) of the total number of shares
subject to options (or fifty-five thousand (55,000) shares) beginning one year
after the Commencement Date and thereafter an additional twenty-five percent
(25%) of such number of shares will vest on each of the second, third and fourth
year anniversaries of the Commencement Date. The options will be exercisable for
a period of six (6) years from the Commencement Date, subject to the terms of
the Company's Employee Stock Option Plan (the "Plan"). Additional options may be
granted in succeeding years, in the sole discretion of the Board. In the event
that Executive is terminated without cause during the Employment Period and
prior to the first twenty-five percent (25%) of the total options referenced
herein vesting, upon such termination and at the sole discretion of the Board,
either: (i) fifty-five thousand (55,000) shares (aggregating twenty-five percent
(25%) of the options referenced herein) will vest immediately, or (ii) the
Company will compensate Executive for such unvested fifty-five thousand (55,000)
shares with the difference between the Strike Price and the closing market price
of the Company's common stock as of the day of Executive's termination, adjusted
by an amount necessary to compensate Executive for the fact that such payment
will be taxed as ordinary income by the Internal Revenue Service and not as
capital gains.
The Company's Employee Stock Option Plan currently has restrictions on
the quantity of options, which may be issued to any one participant per fiscal
year. The Company hereby agrees to resolve this limitation through a new
proposal or amendment at the November, 2000 Board meeting to permit the grant of
options for the number of shares called for herein. In the event that this has
not occurred by December 31, 2000, the Company shall award Executive the maximum
number of options allowable under the Plan for fiscal year 2000, and the maximum
number of options allowable under the plan for each Year thereafter until
Executive has been
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awarded 220,000 options. In the event Executive is terminated following the
first anniversary of the Commencement Date but before he has been awarded
220,000 options, all of the options granted through the date of his termination
shall immediately vest, and in the sole discretion of the Board, the Executive
shall receive either (i) the number of options equal to the difference between
the number of options he was awarded through the date of his termination and
220,000, which options shall immediately vest; or (ii) an amount equal to the
difference between the Purchase Price and the closing market price on the date
of termination multiplied by the number of options described in clause (i) of
this sentence, adjusted by an amount necessary to compensate Executive for the
fact that such payment will be taxed as ordinary income by the Internal Revenue
Service and not as capital gains. The Executive shall receive the options to be
awarded under clause (i) of the preceding sentence or the amount of money to be
paid pursuant to clause (ii) of the preceding sentence within thirty (30) days
of his termination.
11. Change in Control. In the event of a "change in
control" of the Company ("change in control" of the Company shall mean a change
in the ownership of fifty percent (50%) or more of the outstanding stock of the
Company in a single transaction or a change of fifty percent (50%) or more of
the members of the Board in a single transaction, other than pursuant to
nomination of a new slate of directors where there has been no material change
in beneficial ownership of the Company, within 180 days preceding such
nomination, then all of the options granted as of the Commencement Date (options
to purchase two hundred twenty thousand (220,000) shares) will immediately vest
and become exercisable. In the event of a change in control as (described above)
and the Executive is: (i) involuntarily terminated within 120 days following the
change in control; or (ii) voluntarily terminates his employment with the
Company within 120 days, following either: (a) any reduction in Executive's
responsibilities or authority with respect to the Business; (b) a reduction in
Executive's compensation package, including Salary, in effect immediately prior
to the change in control; or (c) the relocation of the Company's principal place
of business more than 30 miles further from Executive's residence as of the date
of this Agreement; then the Executive will be entitled to twelve (12) months
Salary as a change in control allowance, to be paid in a single payment within
thirty (30) days of the termination of Executive's employment.
12. Share Purchase and Loan. During the first six (6)
months following the Commencement Date, the Executive will be entitled to
purchase up to two hundred thousand dollars ($200,000) of shares of common stock
from the Company's treasury ("Shares") at the closing price(s) of the Company's
common stock on the date(s) of purchase. The Company agrees to loan up to fifty
percent (50%) of the funds invested to purchase the Shares (up to one hundred
thousand dollars ($100,000)) as a full recourse loan bearing interest at the
Applicable Federal Rate at the time of the Loan and secured by a first security
interest in the Shares. In addition to the Promissory Note (the form of which is
attached as Exhibit A) and Security Agreement, Executive will be required to
deliver to the Company at the time of the Loan assignments separate from
certificate duly endorsed in blank by the Executive. Executive will be required
to pay interest monthly. The principal amount of the loan must be repaid by
Executive upon the earliest to occur of (i) sale of any of the Shares, (ii)
termination of Executive's employment with the Company, or (iii) six (6) years
from the date the loan is issued.
13. Other Benefits. Except as otherwise specifically
provided herein, during the Employment Period, the Executive shall be eligible
for all non-wage benefits the Company provides generally for its other salaried
employees.
14. Business Expenses.
(a) Reimbursement. The Company shall reimburse the
Executive for the reasonable, ordinary, and necessary business
expenses incurred by him in connection with the performance of
his duties hereunder, including, but not limited to, ordinary
and necessary travel expenses and entertainment expenses and
mobile phone expenses.
(b) Accounting. The Executive shall provide the
Company with an accounting of his expenses, which accounting
shall clearly reflect which expenses are reimbursable by the
Company. The Executive shall provide the Company with such
other supporting documentation and other
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substantiation of reimbursable expenses as will conform to
Internal Revenue Service or other requirements. All such
reimbursements shall be payable by the Company to the
Executive promptly after receipt by the Company of appropriate
documentation therefor.
15. Severance. In the event that the Executive is
terminated for any reason other than gross negligence, commission of a felony in
connection with his employment or material violation of any established Company
policies, the Company shall pay the Executive, as a severance allowance, an
amount equal to four (4) months of his then current salary if such termination
occurs on or before February 28, 2001, five (5) months of his then current
salary if such termination occurs between March 1, 2001 and August 31, 2001, or
six (6) months of his then current salary if such termination occurs after
September 1, 2001. The amount of the severance allowance provided for in this
Section 15 shall be paid in a single lump sum within thirty (30) days of the
termination of the Executive's employment. From time to time after September 1,
2001, the Executive's severance allowance shall be subject to review and
adjustment at the time reviews and adjustments of the severance allowance for
other senior executives of Company are to be conducted. Notwithstanding anything
to the contrary contained herein, in the event the Executive elects to receive
(pursuant to the operation of Section 11) twelve (12) months' Salary following a
change in control event and Executive's voluntary or involuntary termination,
then Executive shall not be entitled to any payment of severance pursuant to
this Section 15. In the event a change in control occurs and the Executive is
not entitled to twelve (12) months' Salary pursuant to Section 11, then the
Executive shall continue to be entitled to receive severance payments per this
Section 15.
16. Surrender of Properties. Upon termination of the
Executive's employment with the Company, regardless of the cause therefor, the
Executive shall promptly surrender to the Company all property provided him by
the Company for use in relation to his employment, and, in addition, the
Executive shall surrender to the Company any and all confidential sales
materials, lists of customers and prospective customers, price lists, files,
patent applications, records, models, or other materials and information of or
pertaining to the Company or its customers or prospective customers or the
products, Business, and operations of the Company in his possession.
17. Inventions and Secrecy. Except as otherwise provided
in this Section 17, the Executive:
(a) shall hold in a fiduciary capacity for the
benefit of the Company all secret or confidential information,
knowledge, or data of the Company or its Business or
production operations obtained by the Executive during his
employment by the Company, which shall not be generally known
to the public or recognized as standard practice (whether or
not developed by the Executive) and shall not, during his
employment by the Company and after the termination of such
employment for any reason, communicate or divulge any such
information, knowledge or data to any person, firm or
corporation other than the Company or persons, firms or
corporations designated by the Company;
(b) shall promptly disclose to the Company all
inventions, ideas, devices, and processes made or conceived by
him alone or jointly with others, from the time of entering
the Company's employ until such employment is terminated,
relevant or pertinent in any way, whether directly or
indirectly, to the Company's Business or production operations
or resulting from or suggested by any work which he may have
done for the Company or at its request;
(c) shall, at all times during his employment with
the Company, assist the Company (entirely at the Company's
expense) to obtain and develop for the Company's benefit
patents on such inventions, ideas, devices and processes,
whether or not patented; and
(d) shall do all such acts and execute, acknowledge
and deliver all such instruments as may be necessary or
desirable in the opinion of the Company to vest in the Company
the entire interest in such inventions, ideas, devices, and
processes referred to above.
The foregoing to the contrary notwithstanding, the Executive shall not be
required to assign or offer to assign to the Company any of the Executive's
rights in any invention for which no equipment, supplies, facility, or trade
secret information of the Company was used and which was developed entirely on
the Executive's own time,
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unless: (A) the invention related to (i) the Business of the Company; or (ii)
the Company's actual or demonstrably anticipated (with the realistic prospect of
occurring) research or development; or (B) the invention results from any work
performed by the Executive for the Company. The Executive acknowledges his prior
receipt of written notification of the limitation set forth in the preceding
sentence on the Executive's obligation to assign or offer to assign to the
Company the Executive's rights in inventions.
18. Confidentiality of Information: Duty of
Non-Disclosure.
(a) The Executive acknowledges and agrees that his
employment by the Company under this Agreement necessarily
involves his understanding of and access to certain trade
secrets and confidential information pertaining to the
Business of the Company. Accordingly, the Executive agrees
that after the date of this Agreement at all times he will
not, directly or indirectly, without the express consent of
the Company, disclose to or use for the benefit of any person,
corporation or other entity, or for himself any and all files,
trade secrets or other confidential information concerning the
internal affairs of the Company, including, but not limited
to, information pertaining to its customers, prospective
customers, services, products, earnings, finances, operations,
methods or other activities, provided, however, that the
foregoing shall not apply to information which is of public
record or is generally known, disclosed or available to the
general public or the industry generally, or known by
Executive prior to his employment with the Company. Further,
the Executive agrees that he shall not, directly or
indirectly, remove or retain, without the express prior
written consent of the Company, and upon termination of this
Agreement for any reason shall return to the Company, any
confidential figures, calculations, letters, papers, records,
computer disks, computer print-outs, lists, documents,
instruments, drawings, designs, programs, brochures, sales
literature, or any copies thereof, or any information or
instruments derived therefrom, or any other similar
information of any type or description, however such
information might be obtained or recorded, arising out of or
in any way relating to the Business of the Company or obtained
as a result of his employment by the Company. The Executive
acknowledges that all of the foregoing are proprietary
information, and are the exclusive property of the Company.
The covenants contained in this Section 18 shall survive the
termination of this Agreement.
(b) The Executive agrees and acknowledges that the
Company does not have any adequate remedy at law for the
breach or threatened breach by the Executive of his covenant,
and agrees that the Company shall be entitled to injunctive
relief to bar the Executive from such breach or threatened
breach in addition to any other remedies which may be
available to the Company at law or in equity.
19. Covenant Not to Compete.
(a) During Employment Period. During the Employment
Period, the Executive shall not, without the prior written
consent of the Company, which consent may be withheld at the
sole and reasonable discretion of the Company, engage in any
other business activity for gain, profit, or other pecuniary
advantage (excepting the investment of funds in such form or
manner as will not require any services on the part of the
Executive in the operation of the affairs of the companies in
which such investments are made) or engage in or in any manner
be connected or concerned, directly or indirectly, whether as
an officer, director, stockholder, partner, owner, employee,
creditor, or otherwise, with the operation, management, or
conduct of any business that competes with the Business of the
Company.
(b) Following Termination of Employment Period.
Within the two (2) year period immediately following the end
of the Employment Period, regardless of the reason therefor,
the Executive shall not, without the prior written consent of
the Company, which consent may be withheld at the sole
discretion of the Company: (A) engage in or in any manner be
connected or concerned, directly or indirectly, whether as an
officer, director, stockholder, partner, owner, employee,
creditor, or otherwise with the operation, management, or
conduct of any business similar to the Business being
conducted at the time of such termination within a 100-mile
radius from Milwaukee, Wisconsin; (B) directly solicit,
contact, interfere with, or divert any customer served by the
Company for the Business,
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or any prospective customer identified by or on behalf of the
Company, during the Executive's employment with the Company;
or (C) directly solicit any employee then employed by the
Company or previously employed by the Company within the one
year period preceding termination of the Executive's
employment with the Company to join the Executive, whether as
a partner, agent, employee or otherwise, in any enterprise
engaged in a business similar to the Business of the Company
being conducted at the time of such termination.
(c) Acknowledgment. The Executive acknowledges that
the restrictions set forth in Section 19 are reasonable in
scope and essential to the preservation of the Business of the
Company and proprietary properties and that the enforcement
thereof will not in any manner preclude the Executive, in the
event of the Executive's termination of employment with the
Company, from becoming gainfully employed in such manner and
to such extent as to provide a standard of living for himself,
the members of his family, and those dependent upon him of at
least the sort and fashion to which he and they have become
accustomed and may expect.
(d) Severability. The covenants of the Executive
contained in Section 19 of this Agreement shall each be
construed as an agreement independent of any other provision
in this Agreement, and the existence of any claim or cause of
action of the Executive against the Company, whether
predicated on this Agreement or otherwise, shall not
constitute a defense to the enforcement by the Company of such
covenants. Both parties hereby expressly agree and contract
that it is not the intention of either party to violate any
public policy, or statutory or common law, and that if any
sentence, paragraph, clause, or combination of the same of
this Agreement is in violation of the law, such sentence,
paragraph, clause or combination of the same shall be void,
and the remainder of such paragraph and this Agreement shall
remain binding on the parties to make the covenants of this
Agreement binding only to the extent that it may be lawfully
done. In the event that any part of any covenant of this
Agreement is determined by a court of law to be overly broad
thereby making the covenant unenforceable, the parties hereto
agree, and it is their desire, that such court shall
substitute a judicially enforceable limitation in its place,
and that as so modified the covenant shall be binding upon the
parties as if originally set forth herein.
20. Arbitration.
(a) Subject to the terms of Section 21(h) below, upon
presentation of a written claim or claims (collectively
"Claims") arising out of or relating to this Agreement, or the
breach hereof, by an aggrieved party, the other party shall
have thirty (30) days in which to make such inquiries of the
aggrieved party and conduct such investigations as it believes
reasonably necessary to determine the validity of the Claims.
At the end of such period of investigation, the complained of
party shall either pay the amount of the Claims or the
arbitration proceeding described in Section 20(b) shall be
invoked, subject to the terms of Section 20(g) below.
(b) In the event that the Claims are not settled by
the procedure set forth in Section 20(a), the Claims shall be
submitted to arbitration conducted in accordance with the
Commercial Arbitration Rules ("Rules") of the American
Arbitration Association ("AAA") except as amplified or
otherwise varied hereby.
(c) The parties shall submit the dispute to the
Milwaukee, Wisconsin regional office of the AAA and the situs
of the arbitration shall be Milwaukee, Wisconsin.
(d) The arbitration shall be conducted by a single
arbitrator. The parties shall appoint the single arbitrator to
arbitrate the dispute within ten (10) business days of the
submission of the dispute. In the absence of agreement as to
the identity of the single arbitrator to arbitrate the dispute
within such time, the AAA is authorized to appoint an
arbitrator in accordance with the rules, except that the
arbitrator shall have as his principal place of business the
Milwaukee, Wisconsin metropolitan area.
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(e) The single arbitrator selected by AAA shall
be an attorney licensed to practice by the State of Wisconsin.
(f) Anything in the Rules to the contrary
notwithstanding, the arbitration award shall be made in
accordance with the following procedure: (i) in the event the
dispute involves monetary relief, each party shall, at the
commencement of the arbitration hearing, submit an initial
statement of the amount each party proposes be selected by the
arbitrator as the arbitration award ("Settlement Amount").
During the course of the arbitration, each party may vary its
proposed Settlement Amount. At the end of the arbitration
hearing, each party shall submit to the arbitrator its final
Settlement Amount ("Final Settlement Amount"), and the
arbitrator shall be required to select either one or the other
Final Settlement Amounts as the arbitration award without
discretion to select any other amount as the award. The
arbitration award shall be paid within thirty (30) business
days after the award has been made, together with interest
from the date of award at the rate of nine percent (9%).
Judgment upon the award may be entered in any federal or state
court having jurisdiction over the parties; (ii) in the event
the dispute involves the interpretation of this Agreement,
each party shall submit an initial statement of the
interpretation each party proposes be selected by the
arbitrator as the arbitration award ("Proposed
Interpretation"). During the course of the arbitration, each
party may vary its Proposed Interpretation. At the end of the
arbitration hearing, each party shall submit to the arbitrator
its final Proposed Interpretation, and the arbitrator shall
select either one or the other final Proposed Interpretations,
or a reasonable alternative, as the arbitration award.
Judgment upon the award may be entered in any federal or state
court having jurisdiction over the parties.
(g) Notwithstanding anything to the contrary
contained herein, any matter which pursuant to the terms of
this Agreement is to be resolved by the Board or the Executive
Committee of the Board in its sole discretion shall be so
resolved without arbitration.
21. General Provisions.
(a) Goodwill. The Company has invested substantial
time and money in the development of its products, services,
territories, advertising and marketing thereof, soliciting
clients and creating goodwill. By accepting employment with
the Company, the Executive acknowledges that the customers are
the customers of the Company, and that any goodwill created by
the Executive belongs to and shall inure to the benefit of the
Company.
(b) Notices. Any notice required or permitted
hereunder shall be made in writing (i) either by actual
delivery of the notice into the hands of the party thereunder
entitled, or (ii) by depositing the notice with a nationally
recognized overnight delivery service, all shipping costs
prepaid and addressed to the party to whom the notice is to be
given at the party's respective address set forth below, or
such other address as the parties may from time to time
designate by written notice as herein provided.
As addressed to the Company: With a copy to:
Merge Technologies Incorporated Xxxxxxx & Xxxxxxxx Ltd.
0000 Xxxxx 00xx Xxxxxx 000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000-0000 Suite 2500
Attention: Chief Financial Officer Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxx X. Xxxxxxxxx, Esq.
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As addressed to the Executive: With a copy to:
Xx. Xxxxxxx X. Xxxxxx Xxxxxxxx & Xxxxxxx
0000 Xxxxxxx Xxxxx 000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000 Suite 1900
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
The notice shall be deemed to be received on the date of its
actual receipt by the party entitled thereto.
(c) Amendment and Waiver. No amendment or
modification of this Agreement shall be valid or binding upon
the Company unless made in writing and signed by an officer of
the Company duly authorized by the Board or upon the Executive
unless made in writing and signed by him. The waiver by the
Company of the breach of any provision of this Agreement by
the Executive shall not operate or be construed as a waiver of
any subsequent breach by him.
(d) Entire Agreement. This Agreement constitutes the
entire Agreement between the parties with respect to the
Executive's duties and compensation as an executive of the
Company, and there are no representations, warranties,
agreements or commitments between the parties hereto with
respect to his employment except as set forth herein. No
presumption shall be made in favor or against either party
based upon who has served as draftsman of this Agreement.
(e) Governing Law. This Agreement shall be governed
by and construed in accordance with the internal laws (and not
the law of conflicts) of the State of Illinois.
(f) Severability. If any provision of this Agreement
shall, for any reason, be held unenforceable, such provision
shall be severed from this Agreement unless, as a result of
such severance, the Agreement fails to reflect the basic
intent of the parties. If the Agreement continues to reflect
the basic intent of the parties, then the invalidity of such
specific provision shall not affect the enforceability of any
other provision herein, and the remaining provisions shall
remain in full force and effect.
(g) Assignment. The Executive may not under any
circumstances delegate any of his rights and obligations
hereunder without first obtaining the prior written consent of
the Company. This Agreement and all of the Company's rights
and obligations hereunder may be assigned or transferred by
it, in whole or in part, to be binding upon and inure to the
benefit of any subsidiary or successor of the Company,
provided either the successor has a net worth greater than the
Company at the time of assignment or the Company remains
primarily liable with respect to the obligations so assigned.
(h) Costs of Enforcement, Litigation. In the event of
any suit or proceeding seeking to enforce the terms,
covenants, or conditions of this Agreement, the prevailing
party shall, in addition to all other remedies and relief that
may be available under this Agreement or applicable law,
recover his or its reasonable attorneys' fees and costs as
shall be determined and awarded by the court. Notwithstanding
anything to the contrary contained in Section 20 above or
elsewhere herein any controversy or dispute with respect to
the terms of Section 16, 17, 18 or 19 of this Agreement will
survive termination of this Agreement and shall be litigated
in the state of federal courts of competent jurisdiction
situated in Milwaukee, Wisconsin, to which jurisdiction and
venue all parties consent.
(i) Mitigation. The Executive shall be obligated to
mitigate his damages as a result of voluntary or involuntary
termination of employment with the Company. Should the
Executive be entitled to change in control payments pursuant
to Section 11 or severance payments pursuant to Section 15,
then, to the extent that during the twelve (12) month period
following change in control termination of employment or
during the period of time for which severance payments are
paid out
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(i.e., four, five or six months based upon pre-severance
tenure), the Executive receives or accrues direct or indirect
compensation for the provision of services (whether an
employee, consultant, independent contractor or otherwise,
either directly or to an entity controlled by or otherwise
affiliated with the Executive), then all such compensation
shall be credited dollar-for-dollar to reduce the change in
control or severance obligation of the Company to the
Executive pursuant to the terms of Section 11 or Section 15,
respectively.
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IN WITNESS WHEREOF, this Agreement is entered into as of the day and
year first above written.
COMPANY:
MERGE TECHNOLOGIES INCORPORATED
By: /s/ XXXXX X. XXXXX
----------------------------------
Xxxxx X. Xxxxx, Chairman
Executive Committee of the Board of Directors
EXECUTIVE:
By: /s/ XXXXXXX X.XXXXXX
-----------------------------------
XXXXXXX X. XXXXXX
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EXHIBIT A
FORM OF STOCK PURCHASE NOTE
25
