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EXHIBIT 10.4
AMENDMENT TO EMPLOYMENT AGREEMENT
AND AGREEMENT TO ACCELERATE CERTAIN
NON-QUALIFIED STOCK OPTIONS
WHEREAS, there is now existing an Employment Agreement (the
"Agreement"), by and between INFOCURE CORPORATION, a Delaware Corporation
("Company") and XXXXX X. XXXXX ("Executive"), dated July 1, 1998;
WHEREAS, the Company and the Executive desire to set forth the terms by
which Executive will continue his employment as the Company's Executive Vice
President, and to modify the existing Agreement between the parties;
WHEREAS, the Company granted Executive an option to purchase thirty
thousand (30,000) shares of common stock of the Company at an exercise price of
Twelve and 25/100 Dollars ($12.25) per share, as evidence by a Non-Qualified
Stock Option Grant Certificate dated June 1, 1998 (the "June 1, 1998
Certificate");
WHEREAS, the Company granted Executive an option to purchase one
hundred thirty thousand (130,000) shares of common stock of the Company at an
exercise price of Thirteen and 50/100 Dollars ($13.50) per share, as evidenced
by a Non-Qualified Stock Option Grant Certificate dated October 23, 1998 (the
"October 23, 1998 Certificate");
WHEREAS, the Company granted Executive an option to purchase two
hundred twenty thousand (220,000) shares of common stock of the Company at an
exercise price of Thirty-Five and No/100 Dollars ($35.00) per share, as
evidenced by a Non-Qualified Stock Option Grant Certificate dated June 9, 1999
(the "June 9, 1999 Certificate"); and
WHEREAS, the Company wishes to provide for one hundred percent (100%)
vesting of all outstanding stock options granted to Executive upon a change in
control of the Company.
NOW, THEREFORE, in consideration of the mutual promises, terms,
covenants and conditions set forth herein and in the Agreement, and the
performance of each, the Company and Executive hereby agree to amend the
Agreement as follows:
1. The last sentence of Section 2.B. is deleted.
2. The following Section 2.G. is added following Section 2.F.:
G. Other Compensation. During the term of this Agreement, in
addition to the Base Salary as provided in Section 2.A. or Incentive
Compensation as provided in Section 2.B. above, Executive shall receive
other compensation, as described in EXHIBITS C through E, which are
attached hereto and shall constitute a part of this Agreement.
3. The last paragraph of Section 4.C. is deleted and replaced by the
following paragraphs:
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Notwithstanding anything to the contrary contained in this
Agreement, in the event of a change (herein a "Change") in the
ownership or effective control of the Company or in the ownership of a
substantial portion of the assets of the Company (as such phrases are
interpreted under Section 280G(b)(2)(A)(i) of the Internal Revenue Code
of 1986, as amended (the "Code")), a licensed certified public
accountant (herein the "Selected Accountant") shall be selected by the
Company and the Executive for the purpose of making a determination as
to whether the Executive shall have any liability for a tax under Code
ss. 4999 due to such "Change." If the Selected Accountant shall
determine that the aggregate payments made to the Executive pursuant to
this Agreement and any other payments to the Executive from the Company
which constitute "parachute payments" (as defined in Code ss.
280G(b)(2)(A)) would be subject to the excise tax under Code ss. 4999
(collectively the "aggregate payments"), then the Executive shall be
entitled to receive an additional payment (herein the "Gross-Up
Payment") in an amount determined by the Selected Accountant such that
after payment by the Executive of all taxes (including any federal or
state income taxes and Code ss. 4999 excise tax) imposed upon the
Gross-Up Payment and any interest or penalties imposed with respect to
such taxes, the Executive retains from the Gross-Up Payment an amount
equal to the Code ss. 4999 excise tax imposed upon the aggregate
payments. If the Selected Accountant shall determine that no Code ss.
4999 excise tax is payable by the Executive, it shall furnish the
Executive with a written opinion that the Executive has substantial
authority not to report any Code ss. 4999 excise tax on the Executive's
federal income tax return. All fees and disbursements of the Selected
Accountant shall be paid by the Company.
If the Executive is subsequently required by any governmental
agency to make a payment of any Code ss. 4999 excise tax (and a payment
of any interest or penalties with respect thereto), then the Selected
Accountant shall determine the amount of such payments and any such
payments shall be promptly paid by the Company to or for the benefit of
the Executive. The Executive shall notify the Company in writing within
fifteen (15) days of any claim by a governmental agency that, if
successful, would require the payment by the Company of a Gross-Up
Payment under the foregoing provisions of this Agreement. If the
Company notifies the Executive in writing that it desires to contest
such claim and that it will bear the costs and provide the
indemnification as required by the preceding sentences, the Executive
shall (i) give the Company any information reasonably requested by the
Company relating to such claim; (ii) take such action in connection
with contesting such claim as the Company shall reasonably request in
writing, from time to time, including, without limitation, accepting
legal representation with respect to such claim by an attorney
reasonably selected by the Company; (iii) cooperate with the Company in
good faith in order to effectively contest such claim and (iv) permit
the Company to participate in any proceedings relating to such claim;
provided, however, that the Company shall bear and pay directly all
costs and expenses (including additional interest and penalties)
incurred in connection with such contest and shall indemnify and hold
the Executive harmless, on an after-tax basis, for any Code ss. 4999
excise tax or
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income tax, including interest and penalties with respect thereto,
imposed as a result of such representation and payment of costs and
expenses. The Company shall control all proceedings taken in connection
with such contest; provided, however, that if the Company directs the
Executive to pay such claim and xxx for a refund, the Company shall
advance the amount of such payment to the Executive, and shall
indemnify and hold the Executive harmless, on an after-tax basis, from
any Code ss. 4999 excise tax or income tax, including interest or
penalties with respect thereto, imposed with respect to such advance or
with respect to any imputed income with respect to such advance. If
after the receipt by the Executive of an amount advanced by the Company
pursuant to the previous sentences, the Executive becomes entitled to
receive any refund with respect to such amount paid, the Executive
shall within ten (10) days pay to the Company the amount of such refund
(together with any interest paid or credited thereon after taxes
applicable thereto).
4. The last paragraph of Section 4.D. of the Agreement is deleted and replaced
by the following paragraph:
For purposes of this Agreement, "Constructive Discharge" shall
mean any of the events set forth below which are not cured within
fifteen (15) days following written notice thereof by Executive to
Company:
(i) Any material reduction in Base Salary;
(ii) A material reduction in Executive's job function,
duties or responsibilities, or a similar change in Executive's
reporting relationships;
(iii) A required relocation of Executive of more than one
hundred (100) miles from Executive's current job location;
(iv) Any material breach of any of the terms of this
Agreement by the Company;
(v) Any failure by the Company to grant to Executive not
later than August 1, 1998 stock options in the amount and on terms set
forth on EXHIBIT C; or
(vi) Any failure by the Company to grant to Executive not
later than June 10, 1999, stock options in the amount and on terms set
forth on EXHIBIT E.
provided, however, that the term "Constructive Discharge" shall not
include a specific event described in the preceding clause (i), (ii),
(iii) or (iv) unless Executive actually terminates his employment with
the Company within sixty (60) days after the occurrence of such event.
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5. Section 7.A. of the Agreement is amended by striking the phrase "twelve
(12) months" and inserting in lieu thereof the phrase "twenty-four (24)
months" each place it appears.
6. SCHEDULE A to the Agreement shall be renamed EXHIBIT C.
7. SCHEDULE B to the Agreement shall be renamed EXHIBIT D.
8. EXHIBIT E which is attached hereto shall be attached to the Agreement
and made a part thereof.
9. The effective date for each and every provision of this Amendment shall
be the date of execution noted below.
10. Except as specifically amended above, the Agreement shall remain
unchanged and, as amended herein, shall remain in full force and
effect.
Furthermore, in consideration of the mutual promises, terms, covenants and
conditions set forth herein and in the Agreement, and the performance of each,
the Company and Executive hereby further agree to accelerate the vesting on the
options granted evidenced by the June 1, 1998 Certificate, the October 23, 1998
Certificate and the June 9, 1999 Certificate in the event of a Change in Control
(as defined in Section 4.C. of the Agreement) so that such options shall
immediately become fully (100%) vested and exercisable in such event.
IN WITNESS WHEREOF, the parties have executed this Amendment to
Employment Agreement and Agreement to Accelerate Certain Nonqualified Stock
Options to be effective as of June 9, 1999.
COMPANY:
InfoCure Corporation
By: /s/ Xxxxxxx X. Xxxxxxx
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Title: Chairman
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EXECUTIVE:
/s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
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EXHIBIT E
A non-qualified option to purchase two hundred twenty thousand
(220,000) shares of Company's common stock at an exercise price equal to fair
market value on the date of grant, vesting over four (4) years from the date of
grant, with such other terms and provisions as may be set forth in a written
option agreement or option certificate executed by the parties.
