FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
FIRST
AMENDMENT TO
THIS
FIRST AMENDMENT TO EMPLOYMENT AGREEMENT (the “Amendment”)
is made
and entered into as of July 15, 2005, by and between NovaMed Management
Services, LLC (f/k/a NovaMed Eyecare Services, LLC), a Delaware limited
liability company (the “Company”),
and E.
Xxxxxxx Xxxxxxx (“Employee”).
RECITALS
A. The
Company and Employee originally entered into an Employment Agreement dated
March
31, 1997, which was most recently amended and restated as of August 17,
2001 (the
“Existing
Agreement”).
B. In
consideration for the continued employment of Employee, the parties hereto
desire to amend the terms and conditions of the Existing Agreement, all on
the
terms and conditions set forth herein.
NOW,
THEREFORE,
in
consideration of the premises, the mutual covenants of the parties hereinafter
set forth and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as
follows:
TERMS
1. The
first
sentence of Section 2.1 shall be deleted in its entirety and replaced with
the
following:
“During
the Employment Period, the Company will pay Employee a base salary at the
rate
of $248,000 per annum (which annual base salary, as increased from time to
time
in accordance with this Section
2.1,
shall
be referred to herein as the “Base
Salary”),
payable in regular installments in accordance with the Company's general
payroll
practices for salaried employees.”
2. Section
3.3(b) of the Existing Agreement shall be deleted in its entirety and replaced
with the following:
(b) Except
as
described in Section
3.4
hereof,
if the Employment Period is terminated by the Company without Cause (including
a
termination resulting from the Company’s election not to renew this Agreement
under Section
1.1
hereof):
(i) Employee shall be entitled to receive all items described in Section
3.3(a)
above;
and (ii) subject to the conditions hereinafter set forth, Employee shall
be
entitled to receive as severance compensation, the following (collectively,
the
“Severance
Pay”):
(A)
Employee’s then-current monthly Base Salary hereunder for a period of fifteen
(15) months (such time period to be hereinafter referred to as the “Severance
Period” (unless
modified by Section
3.4)),
payable in regular installments in accordance with the Company’s general payroll
practices for salaried employees; (B) the
bonus, if any, that Employee would have been entitled under Section
2.2
hereof
at the end of the year during which the termination without Cause occurs
had
such termination not occurred, which bonus shall be (1) prorated based on
the
amount of time that Employee was employed by the Company during the year
(not
including the Severance Period) for which such bonus is being calculated,
and
(2) determined and paid to Employee contemporaneously with the determination
and
payment of bonuses for comparable employees of the Company; and (C) continuation
of the welfare benefits described in Section
2.3(a)
for the
Severance Period, to the extent permissible under the terms of the relevant
benefit plans. The bonus described in subclause (B) above
shall not be the “Target Bonus” (as defined in Section
3.4(b)),
but
rather the bonus that would have been payable pursuant to Section
2.2
hereof,
as modified by this Section
3.3(b).
Employee’s right to receive Severance Pay hereunder is conditioned upon: (x)
Employee executing and delivering to the Company a written separation agreement
and general release of all claims, in form and substance acceptable to the
Company, which shall among other things, contain a general release by Employee
of all claims arising out of his employment and termination of employment
by the
Company; and (y) Employee’s compliance with all of his obligations which survive
termination of this Agreement, including without limitation those described
in
Article
IV
below.
The Severance Pay is intended to be in lieu of all other payments to which
Employee might otherwise be entitled in respect of his termination without
Cause. The Company shall have no further obligations hereunder or otherwise
with
respect to Employee’s employment from and after the date of termination of
employment with the Company for any reason (the “Termination
Date”),
and
the Company shall continue to have all other rights available hereunder
(including without limitation, all rights hereunder (including without
limitation, all rights under Article
IV
hereof)
at law or in equity.
3. Section
3.4(b) of the Existing Agreement shall be deleted in its entirety and replaced
with the following:
(b) If
the
Employment Period is terminated following a Change in Control (i) by the
Company
without Cause (including a termination resulting from the Company’s election not
to renew this Agreement under Section
1.1 hereof)
or (ii) by Employee for Good Reason, then subject to the conditions described
in
Section
3.4(d)
below,
Employee shall be entitled to receive the following as Severance Pay in lieu
of
any amounts payable under Section
3.3:
(A) one
hundred fifty percent (150%) times the sum of Employee’s Base Salary and Target
Bonus, payable within 30 days following the Termination Date and (B)
continuation of the welfare benefits described in Section
2.3(a)
for
eighteen (18) months
(the “Severance
Period”)
to the
extent permissible under the terms of the relevant benefit plans. For purposes
of this Agreement, “Target
Bonus”
shall
mean the greater of (x) an amount equal to the bonus that would have been
payable to Employee following the calendar year in which the Termination
Date
occurs pursuant to the Company’s Executive Compensation Plan (the “Executive
Plan”),
based
on attaining one hundred percent (100%) of Employee’s applicable target measure
established pursuant to the Executive Plan or (y) thirty-five
percent (35%) of Base Salary. The Target Bonus shall not be adjusted based
on
whether the Company anticipates attaining such target measure as of the
Termination Date, whether the target measure is ultimately attained or whether
any bonus amounts payable under the Executive Plan would have ultimately
been
approved by either the Compensation Committee or the Board.
4. Section
3.4(c) of the Existing Agreement shall be deleted in its entirety and replaced
with the following:
(c) If
the
Employment Period is terminated following a Change in Control by Employee
for
any reason or no reason during the Window Period, then subject to the conditions
described in Section
3.4(d)
below,
Employee shall be entitled to receive the following as Severance Pay in lieu
of
any amounts payable under Section
3.3:
(i)
fifty percent (50%) of the
product of: (x) one hundred fifty percent (150%); multiplied by (y) the sum
of
Employee’s Base Salary and Target Bonus, payable within thirty (30) days
following the Termination Date and (ii) continuation of the welfare benefits
described in Section
2.3(a)
for nine
(9) months (the “Severance
Period”)
to the
extent permissible under the terms of the relevant benefit plans.
5. All
other
provisions of the Existing Agreement not expressly amended hereby shall continue
to survive in accordance with their respective terms and
conditions.
[Signature
Page to Follow]
IN
WITNESS WHEREOF,
the
parties have executed this Agreement on the day and year first above
written.
| COMPANY: | ||
| NovaMed Management Services, LLC, a Delaware limited liability company | ||
| |
|
|
| By: | /s/ Xxxxx X. Xxxxxxxx | |
|
Xxxxx X. Xxxxxxxx |
||
| Executive Vice President and Chief Financial Officer | ||
| EMPLOYEE: | ||
| |
|
|
| By: | /s/ E. Xxxxxxx Xxxxxxx | |
|
E. Xxxxxxx Xxxxxxx |
||
