Exhibit 10.54
EMPLOYMENT AGREEMENT
BETWEEN
G. XXXXX XXXXXXXXX
AND
NDCHEALTH CORPORATION
DATED: FEBRUARY 9, 2005
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into this
9th day of February, 2005, by and between NDCHealth Corporation, a Delaware
corporation with its principal executive offices located in Atlanta, Georgia
(the "Company"), and G. Xxxxx XxxXxxxxx, a current resident of Missouri with
planned relocation to Georgia, ("Executive"), to be effective as of the
Effective Date, as defined in Section 1.
BACKGROUND
Executive currently serves as the EVP and General Manager, Pharmacy for the
Company. Executive and the Company desire to memorialize the terms of such
employment in this Agreement.
NOW THEREFORE, in consideration of the mutual covenants and agreements set
forth herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Effective Date. The effective date of this Agreement (the "Effective
Date") is February 9, 2005.
2. Employment. Executive is hereby employed as the EVP and General Manager,
Pharmacy of the Company. In such capacity, Executive will have the
responsibilities commensurate with such position as will be assigned to him by
the Chief Executive Officer, "CEO", of the Company, in accordance with the
policies and objectives established by the Board of Directors of the Company
(the "Board"). Executive's reporting responsibilities will be to the CEO or such
other executive officer that the CEO may designate from time to time.
3. Employment Period. Executive's employment hereunder will begin on the
Effective Date and end on the third anniversary of the Effective Date, unless
extended as hereinafter provided in this Section 3 or terminated in accordance
with the provisions of Section 7 (the "Employment Period"). As of the third
anniversary of the Effective Date and on each succeeding anniversary of the
Effective Date during the Employment Period, Executive's Employment Period will
automatically be extended by one year so as to end on the next anniversary of
the Effective Date, unless the Company otherwise provides Executive with written
notice of non-renewal at least 60 days prior to the anniversary of the Effective
Date or, following any automatic extension, any succeeding anniversary of the
Effective Date.
4. Extent of Service. During the Employment Period, Executive will render
his services to the Company (or to its successor following a Change in Control,
as defined below) in conformity with professional standards, in a prudent and
workmanlike manner and in a manner consistent with the obligations imposed on
officers of corporations under
applicable law. Executive will promote the interests of the Company and its
subsidiaries and affiliated entities in carrying out Executive's duties and will
not deliberately take any action which could, or fail to take any action which
failure could, reasonably be expected to have a material adverse effect upon the
business of the Company or any of its subsidiaries or any of their respective
affiliates. Executive agrees to devote his business time, attention, skill and
efforts exclusively to the faithful performance of his duties hereunder (both
before and after a Change in Control); provided, however, that it will not be a
violation of this Agreement for Executive to (i) devote reasonable periods of
time to charitable and community activities and, with the approval of the
Company, industry or professional activities, and/or (ii) manage personal
investments, so long as such activities do not materially interfere with the
performance of Executive's responsibilities under this Agreement.
5. Compensation and Benefits.
(a) Base Salary. During the Employment Period, Executive will be
entitled to receive a base salary in the amount of $300,000 per year ("Base
Salary"), less normal withholdings, payable in equal bi-weekly installments or
other installments as are customary under the Company's payroll practices from
time to time. The Compensation Committee of the Board will review Executive's
Base Salary periodically and in its sole discretion, subject to approval of the
Board, may increase Executive's Base Salary from time to time. The periodic
review of Executive's salary by the Board will consider, among other things,
Executive's own performance and the Company's performance.
(b) Incentive and Savings Plans. During the Employment Period,
Executive will be entitled to participate in incentive and savings plans,
practices, policies and programs applicable generally to employees of the
Company. Certain executive programs will be made available on a selective basis
at the discretion of the CEO or the Compensation Committee of the Board. Without
limiting the foregoing, the following will apply:
(i) Annual Bonus. Executive will have an annual bonus opportunity
of not less than $175,000 (prorated for FY05), based on 100% achievement of
financial objectives established by the CEO or his designee ("Bonus
Opportunity"). The annual Bonus Opportunity and specific performance objectives
will be set forth in Executive's individual performance and incentive plan for
each year.
(ii) Incentive Awards. On or about the Effective Date (or earlier
upon Executive's hire date), the Company made a grant of restricted stock, stock
options, restricted stock units, stock appreciation rights and/or similar
stock-based awards to Executive as a long-term incentive for performance and in
consideration for entering into this Agreement. Further grants of incentive
awards may be made to Executive in future years at the discretion of the
Compensation Committee of the Board.
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(c) Welfare Benefit Plans. During the Employment Period, Executive and
Executive's family will be eligible for participation in, and will receive all
benefits under, the welfare benefit plans, practices, policies and programs
provided by the Company (including, without limitation, medical, prescription,
dental, disability, employee life, group life, accidental death and travel
accident insurance plans and programs), subject to the same terms that such
benefits are made available to other senior executives of the Company generally
(exception made regarding life insurance, Executive to be covered immediately
upon hire).
(d) Expenses. During the Employment Period, Executive will be entitled
to receive prompt reimbursement for all reasonable expenses incurred by
Executive in accordance with the policies, practices and procedures of the
Company.
(e) Fringe Benefits. During the Employment Period, Executive will be
entitled to fringe benefits in accordance with the plans, practices, programs
and policies of the Company.
6. Change in Control. For the purposes of this Agreement, a "Change in
Control" means:
(a) The acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act")) (a "Person") of beneficial ownership (within
the meaning of Rule 13d-3 promulgated under the Exchange Act) of 35% or more of
the combined voting power of the then outstanding voting securities of the
Company entitled to vote generally in the election of directors (the
"Outstanding Company Voting Securities"); provided, however, that for purposes
of this subsection (a), the following acquisitions will not constitute a Change
in Control: (i) any acquisition by a Person who is on the Effective Date the
beneficial owner of 35% or more of the Outstanding Company Voting Securities,
(ii) any acquisition directly from the Company, (iii) any acquisition by the
Company which reduces the number of Outstanding Company Voting Securities and
thereby results in any Person having beneficial ownership of more than 35% of
the Outstanding Company Voting Securities, (iv) any acquisition by any employee
benefit plan (or related trust) sponsored or maintained by the Company or any
corporation controlled by the Company, or (v) any acquisition by any corporation
pursuant to a transaction which complies with clauses (i) and (ii) of subsection
(b) of this Section 6; or
(b) Consummation of a reorganization, merger or consolidation or sale
or other disposition of all or substantially all of the assets of the Company (a
"Business Combination"), in each case, unless, following such Business
Combination, (i) outstanding Company common stock (or outstanding securities
issued by a surviving entity in exchange therefore) constitutes more than 50% of
the then outstanding shares of common stock and the combined voting power of the
then outstanding voting securities entitled to vote generally in the election of
directors, as the case may be, of the corporation resulting from such Business
Combination, and (ii) no Person (excluding the
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Company or any employee benefit plan (or related trust) of the Company or such
corporation resulting from such Business Combination) beneficially owns,
directly or indirectly, 35% or more of the combined voting power of the then
outstanding voting securities of such corporation except to the extent that such
ownership existed prior to the Business Combination; or
(c) The election of a majority of the members of the Board, without
the recommendation or approval by a majority of the existing Board members; or
(d) The shareholders of the Company approve a plan of complete
liquidation or dissolution of the Company (other than by a re-organization,
merger or consolidation or sale or other disposition of all or substantially all
of the assets of the Company); provided, however, that
(e) Notwithstanding anything in this definition to the contrary, a
restructuring and/or separation of any line of business or business unit from
the Company will not of itself constitute a Change in Control; provided further
that
(f) For the avoidance of doubt, the term "Person" as used in this
Section 6 includes the shareholders of a corporation or other entity that is a
party to a merger, consolidation or business combination to which the Company
also is a party, including a forward or reverse subsidiary merger pursuant to
which voting securities of the Company are issued to such shareholders.
7. Termination of Employment.
(a) Death, Retirement or Disability. Executive's employment and the
Employment Period will terminate automatically upon Executive's death or
Retirement. For purposes of this Agreement, "Retirement" means normal retirement
as defined in the Company's then-current retirement plan, or if there is no such
retirement plan, "Retirement" means voluntary termination after age 65 with ten
years of service. If the Company determines in good faith that a Disability of
Executive has occurred (pursuant to the definition of Disability set forth
below), it may give to Executive written notice of its intention to terminate
Executive's employment. In such event, Executive's employment with the Company
will terminate effective on the 30th day after receipt of such written notice by
Executive (the "Disability Effective Date"), provided that, within the 30 days
after such receipt, Executive has not returned to full-time performance of
Executive's duties or Executive consistently fails to meet reasonable
expectations in his work performance due to any incapacity resulting from a
physical or mental illness. For purposes of this Agreement, "Disability" means a
mental or physical disability as determined by the Board in accordance with
standards and procedures similar to those under the Company's employee long-term
disability plan, if any. At any time that the Company does not maintain such a
long-term disability plan, Disability will mean the inability of Executive, as
determined by the Board, to substantially perform the essential functions of his
regular duties and responsibilities due to a medically determinable
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physical or mental illness which has lasted (or can reasonably be expected to
last) for a period of six consecutive months.
(b) Termination by the Company. The Company may terminate Executive's
employment for Poor Performance or with or without Cause. For purposes of this
Agreement:
"Poor Performance" means the consistent failure of Executive to
meet reasonable performance expectations (other than any such failure resulting
from incapacity due to physical or mental illness); provided, however, that
termination for Poor Performance will not be effective unless at least 30 days
prior to such termination Executive has received written notice from the CEO or
the Board which specifically identifies the manner in which the CEO or the Board
believes that Executive has not met performance expectations and Executive has
failed after receipt of such notice to resume the diligent performance of his
duties to the satisfaction of the CEO or the Board; and
"Cause" means:
(i) the willful and continued failure of Executive to perform
substantially Executive's duties with the Company (other than any such failure
resulting from incapacity due to physical or mental illness, and specifically
excluding any failure by Executive, after reasonable efforts, to meet
performance expectations), after a written demand for substantial performance is
delivered to Executive by the President of the Company, the CEO or the Board
which specifically identifies the manner in which such Board or officer believes
that Executive has not substantially performed Executive's duties, or
(ii) any act of fraud, misappropriation, embezzlement or similar
dishonest or wrongful act by Executive, or
(iii) Executive's abuse of alcohol or any substance which
materially interferes with Executive's ability to perform services on behalf of
the Company, or
(iv) Executive's conviction for, or plea of guilty or nolo
contendere to, a felony, or
(v) Executive's acceptance of employment with an employer other
than the Company or any subsidiary of the Company.
(c) Termination by Executive. Executive's employment may be terminated
by Executive for Good Reason or no reason. For purposes of this Agreement, "Good
Reason" means:
(i) a reduction by the Company in Executive's Base Salary or
benefits as in effect on the Effective Date or as the same may be increased from
time to time,
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unless a similar reduction is made in salary or benefits of all senior
executives of the Company (or any of its subsidiaries and any of their
respective affiliates with respect to which the Company exerts control over
compensation policies); or
(ii) the Company's requiring Executive, without his consent, to
be based at any office or location other than in the greater metropolitan area
of the city in which his office is located at the Effective Date.
(d) Notice of Termination. Any termination by the Company for Poor
Performance or Cause, or by Executive for Good Reason, will be communicated by
Notice of Termination to the other party hereto given in accordance with Section
17(f) of this Agreement. For purposes of this Agreement, a "Notice of
Termination" means a written notice which (i) indicates the specific termination
provision in this Agreement relied upon, (ii) to the extent applicable, sets
forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of Executive's employment under the provision so indicated
and (iii) if the Date of Termination (as defined below) is other than the date
of receipt of such notice, specifies the termination date (which date will be
not more than 30 days after the giving of such notice). The failure by Executive
or the Company to set forth in the Notice of Termination any fact or
circumstance which contributes to a showing of Good Reason, Poor Performance or
Cause will not waive any right of Executive or the Company, respectively,
hereunder or preclude Executive or the Company, respectively, from asserting
such fact or circumstance in enforcing Executive's or the Company's rights
hereunder.
(e) Date of Termination. "Date of Termination" means (i) if
Executive's employment is terminated other than by reason of death, Disability
or Retirement, the date of receipt of the Notice of Termination, or any later
date specified therein (which will not be more than 30 days after the date of
delivery of the Notice of Termination), or (ii) if Executive's employment is
terminated by reason of death, Disability or Retirement, the Date of Termination
will be the date of death or Retirement, or the Disability Effective Date, as
the case may be. In no event will the Date of Termination be after the end of
Executive's Employment Period, as provided for in Section 3 of this Agreement.
8. Obligations of the Company upon Termination.
(a) Upon Normal Expiration of Employment Period. Upon the expiration
of Executive's Employment Period, as described in Section 3:
(i) the Company will pay to Executive in a lump sum in cash within 30
days after the expiration of his Employment Period the sum of (A) Executive's
Base Salary through the expiration of his Employment Period to the extent not
theretofore paid, and (B) any accrued vacation pay to the extent not theretofore
paid; and
(ii) to the extent not theretofore paid or provided, the Company will
timely pay or provide to Executive any other amounts or benefits required to be
paid or
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provided or which Executive is eligible to receive under any plan, program,
policy or practice or contract or agreement of the Company, including any rights
to which he is entitled under the Consolidated Omnibus Budget Reconciliation Act
of 1985, as amended ("COBRA"), (such other amounts and benefits will be
hereinafter referred to as the "Other Benefits").
(b) Prior to a Change in Control: Termination by Executive for Good
Reason; Termination by the Company Other Than for Poor Performance, Cause or
Disability. If, prior to a Change in Control and during the Executive's
Employment Period, the Company terminates Executive's employment other than for
Poor Performance, Cause or Disability, or Executive terminates employment for
Good Reason within a period of 90 days after the occurrence of the event giving
rise to Good Reason, then (and with respect to the payments and benefits
described in clauses (ii) through (vii) below, only if Executive executes a
Release in substantially the form of Exhibit A hereto (the "Release")):
(i) the Company will pay to Executive in a lump sum in cash
within 30 days after the Date of Termination the sum of (A) Executive's Base
Salary through the Date of Termination to the extent not theretofore paid, and
(B) any accrued vacation pay to the extent not theretofore paid (the sum of the
amounts described in clauses (A) and (B) will be hereinafter referred to as the
"Accrued Obligations"); and
(ii) for the longer of six months or until Executive becomes
employed with a subsequent employer, but in no event to exceed the lesser of (A)
18 months from the Date of Termination or (B) the remaining term of Executive's
Employment Period (the "Normal Severance Period"), the Company will continue to
pay Executive an amount equal to his monthly Base Salary, payable in equal
monthly or more frequent installments as are customary under the Company's
payroll practices from time to time; provided, however, that the Company's
obligation to make or continue such payments will cease if Executive violates
any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement)
and fails to remedy such violation to the satisfaction of the Board within 10
days of notice of such violation; and
(iii) during the Normal Severance Period, if and to the extent
Executive timely elects COBRA continuation coverage, the Company will pay for
the full premium amount of such COBRA continuation coverage and will impute
taxable income to the Executive equal to the full premium amount; provided,
however that the Company's obligation to provide such benefits will cease if
Executive violates any of the Restrictive Covenants (as defined in Section 13(b)
of this Agreement) and fails to remedy such violation to the satisfaction of the
Board within 10 days of notice of such violation; provided further, that to the
extent Executive continues COBRA continuation coverage beyond his Normal
Severance Period, Executive will be responsible for paying the full cost of the
COBRA continuation coverage in accordance with the procedures of the Company
generally applicable to all qualified beneficiaries receiving COBRA continuation
coverage; and
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(iv) not later than 30 days after the Date of Termination,
Executive will be paid a bonus for the year in which the Date of Termination
occurs in a lump sum cash amount equal to 100% of his Bonus Opportunity
(prorated through the Date of Termination) adjusted up or down by reference to
his year-to-date performance at the Date of Termination in relation to the prior
established performance objectives under Executive's bonus plan for such year;
provided, however that the bonus payment described in this Section 8(b)(iv) will
be reduced by the amount (if any) of the Bonus Opportunity that Executive had
previously elected to receive in the form of restricted stock of the Company;
and
(v) all grants of restricted stock, restricted stock units and
similar Company stock-based awards ("Restricted Stock") held by Executive as of
the Date of Termination will become immediately vested as of the Date of
Termination; and
(vi) all of Executive's options to acquire Common Stock of the
Company, stock appreciation rights in Common Stock of the Company and similar
Company stock-based awards ("Options") that would have become vested (by lapse
of time) within the 24-month period following the Date of Termination had
Executive remained employed during such period will become immediately vested as
of the Date of Termination; and
(vii) notwithstanding the provisions of the applicable Option
agreement, all of Executive's vested but unexercised Options as of the Date of
Termination (including those with accelerated vesting pursuant to Section
8(b)(vi) above) will remain exercisable through the earlier of (A) the original
expiration date of the Option, or (B) the 90th day following the end of the
Normal Severance Period; and
(viii) to the extent not theretofore paid or provided, the
Company will timely pay or provide to Executive his Other Benefits.
(c) Prior to a Change in Control: Termination by the Company for Poor
Performance. If, prior to the occurrence of a Change in Control, the Company
terminates Executive's employment for Poor Performance, then (and with respect
to the payments and benefits described in clauses (ii) through (vii) below, only
if Executive executes the Release):
(i) the Company will pay to Executive the Accrued Obligations in
a lump sum in cash within 30 days after the Date of Termination; and
(ii) for the shortest of 12 months after the Date of Termination,
the remaining term of Executive's Employment Period, or until Executive becomes
employed with a subsequent employer (the "Poor Performance Severance Period"),
the Company will continue to pay Executive an amount equal to his monthly Base
Salary, payable in equal bi-weekly installments or more frequent installments as
are customary under the
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Company's payroll practices from time to time; provided, however that the
Company's obligation to make or continue such payments will cease if Executive
violates any of the Restrictive Covenants (as defined in Section 13(b) of this
Agreement) and fails to remedy such violation to the satisfaction of the Board
within 10 days of notice of such violation; and
(iii) during the Poor Performance Severance Period, if and to the
extent Executive timely elects COBRA continuation coverage, the Company will pay
for the full premium amount of such COBRA continuation coverage and will impute
taxable income to the Executive equal to the full premium amount; provided,
however that the Company's obligation to provide such benefits will cease if
Executive violates any of the Restrictive Covenants (as defined in Section 13(b)
of this Agreement) and fails to remedy such violation to the satisfaction of the
Board within 10 days of notice of such violation; provided further, that to the
extent Executive continues COBRA continuation coverage beyond his Poor
Performance Severance Period, Executive will be responsible for paying the full
cost of the COBRA continuation coverage in accordance with the procedures of the
Company generally applicable to all qualified beneficiaries receiving COBRA
continuation coverage; and
(iv) all grants of Restricted Stock held by Executive as of the
Date of Termination that would have become vested (by lapse of time) within the
12-month period following the Date of Termination had Executive remained
employed during such period will become immediately vested as of the Date of
Termination; and
(v) all of Executive's Options that would have become vested (by
lapse of time) within the 12-month period following the Date of Termination had
Executive remained employed during such period will become immediately vested
and exercisable as of the Date of Termination; and
(vi) notwithstanding the provisions of the applicable Option
agreement, all of Executive's vested but unexercised Options as of the Date of
Termination (including those with accelerated vesting pursuant to the Section
8(c)(vi) above) will remain exercisable through the earlier of (A) the original
expiration date of the Option, or (B) the 90th day following the end of the
later of (1) six months from the Date of Termination, or (2) the end of the Poor
Performance Severance Period; and
(vii) to the extent not theretofore paid or provided, the Company
will timely pay or provide to Executive his Other Benefits.
(d) After or in Connection with a Change in Control: Termination by
Executive for Good Reason; Termination by the Company Other Than for Cause or
Disability. If a Change in Control occurs and, within 36 months following such
Change in Control (or if Executive can reasonably show that such termination by
the Executive or by the Company was in anticipation of the Change in Control),
the Company terminates Executive's employment other than for Cause or Disability
or does not extend the
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Employment Period as permitted under Section 3, or Executive terminates
employment for Good Reason, then (and with respect to the payments and benefits
described in clauses (ii) through (vii) below, only if Executive executes the
Release):
(i) the Company (or its successor) will pay to Executive the
Accrued Obligations in a lump sum in cash within 30 days after the Date of
Termination; and
(ii) the Company (or its successor) will pay to Executive a lump
sum cash amount equal to 24 times his monthly Base Salary within 30 days after
the Date of Termination; and
(iii) for 18 months after the Date of Termination, if and to the
extent Executive timely elects COBRA continuation coverage, the Company will pay
for the full premium amount of such COBRA continuation coverage and will impute
taxable income to the Executive equal to the full premium amount; provided,
however that the Company's obligation to provide such benefits will cease if
Executive violates any of the Restrictive Covenants (as defined in Section 13(b)
of this Agreement) and fails to remedy such violation to the satisfaction of the
Board within 10 days of notice of such violation; and
(iv) not later than 30 days after the Date of Termination,
Executive will be paid a lump sum cash amount equal to 100% of his Bonus
Opportunity for the year in which the Date of Termination occurs (as defined in
Section 5(b)(i)); provided, however that the total bonus payment described in
this Section 8(d)(iv) will be reduced by the amount (if any) of the Bonus
Opportunity that Executive had previously elected to receive in the form of
restricted stock of the Company; and
(v) all grants of Restricted Stock held by Executive as of the
Date of Termination will become immediately vested as of the Date of
Termination; and
(vi) all of Executive's Options held by Executive as of the Date
of Termination will become immediately vested and exercisable as of the Date of
Termination; and
(vii) notwithstanding the provisions of the applicable Option
agreement, all of Executive's vested but unexercised Options as of the Date of
Termination (including those with accelerated vesting pursuant to the Section
8(d)(vi) above) will remain exercisable through the earlier of (A) the original
expiration date of the Option, or (B) the 90th day following the end of the
24-month period beginning on the Date of Termination; and
(viii) to the extent not theretofore paid or provided, the
Company will timely pay or provide to Executive his Other Benefits; and
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(ix) the restrictions on Executive's conduct outlined in Section
13 of this Agreement will cease to apply.
(e) Death, Disability or Retirement. Regardless of whether or not a
Change in Control has occurred, if Executive's employment is terminated by
reason of Executive's death, Disability or Retirement, this Agreement will
terminate without further obligations to Executive or his estate or legal
representatives under this Agreement, other than for payment of Accrued
Obligations and the timely payment or provision of Other Benefits. Accrued
Obligations will be paid to Executive's estate or beneficiary, as applicable, in
a lump sum in cash within 30 days of the Date of Termination. With respect to
the provision of Other Benefits, the term Other Benefits as used in this Section
8(e) will include, without limitation, and Executive or his estate and/or
beneficiaries will be entitled to receive, benefits under such plans, programs,
practices and policies relating to death, disability or retirement benefits, if
any, as are applicable to Executive on the Date of Termination.
(f) Cause or Voluntary Termination without Good Reason. Regardless of
whether or not a Change in Control has occurred, if Executive's employment is
terminated for Cause, or if Executive voluntarily terminates employment without
Good Reason, this Agreement will terminate without further obligations to
Executive, other than for payment of Accrued Obligations and the timely payment
or provision of Other Benefits.
9. Non-exclusivity of Rights. Nothing in this Agreement will prevent or
limit Executive's continuing or future participation in any plan, program,
policy or practice provided by the Company and for which Executive may qualify,
nor, subject to Section 16(d), will anything herein limit or otherwise affect
such rights as Executive may have under any contract or agreement with the
Company. Amounts which are vested benefits or which Executive is otherwise
entitled to receive under any plan, policy, practice or program of the Company
or under any contract or agreement with the Company at or subsequent to the Date
of Termination will be payable in accordance with such plan, policy, practice or
program or contract or agreement except as explicitly modified by this
Agreement.
10. Certain Additional Payments by the Company.
(a) Anything in this Agreement to the contrary notwithstanding and
except as set forth below, in the event it will be determined that any payment
or distribution by the Company to or for the benefit of Executive (whether paid
or payable or distributed or distributable pursuant to the terms of this
Agreement or otherwise, but determined without regard to any additional payments
required under this Section 10) (a "Payment") would be subject to the excise tax
imposed by Section 4999 of the Code or any interest or penalties are incurred by
Executive with respect to such excise tax (such excise tax, together with any
such interest and penalties, are hereinafter collectively referred to as the
"Excise Tax"), then Executive will be entitled to receive an additional payment
(a
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"Gross-Up Payment") in an amount such that after payment by Executive of all
taxes (including any interest or penalties imposed with respect to such taxes),
including, without limitation, any income taxes (and any interest and penalties
imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment,
Executive retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Payments. Notwithstanding the foregoing provisions of this
Section 10(a), if it is determined that Executive is entitled to a Gross-Up
Payment, but that Executive, after taking into account the Payments and the
Gross-Up Payment, would not receive a net after-tax benefit of at least $50,000
(taking into account both income taxes and any Excise Tax) as compared to the
net after-tax proceeds to Executive resulting from an elimination of the
Gross-Up Payment and a reduction of the Payments, in the aggregate, to an amount
(the "Reduced Amount") such that the receipt of Payments would not give rise to
any Excise Tax, then no Gross-Up Payment will be made to Executive and the
Payments, in the aggregate, will be reduced to the Reduced Amount. In that
event, Executive will direct which Payments are to be modified or reduced.
(b) Subject to the provisions of Section 10(c), all determinations
required to be made under this Section 10, including whether and when a Gross-Up
Payment is required and the amount of such Gross-Up Payment and the assumptions
to be utilized in arriving at such determination, will be made by Ernst & Young
LLP or such other certified public accounting firm reasonably acceptable to the
Company as may be designated by Executive (the "Accounting Firm") which will
provide detailed supporting calculations both to the Company and Executive
within 15 business days of the receipt of notice from Executive that there has
been a Payment, or such earlier time as is requested by the Company. In the
event that the accounting firm is serving as accountant or auditor for the
individual, entity or group effecting the Change in Control, or in the event
that serving as the Accounting Firm for purposes of this Section 10(b) would
jeopardize the accounting firm's status as the Company's independent auditor,
Executive will appoint another nationally recognized accounting firm to make the
determinations required hereunder (which accounting firm will then be referred
to as the Accounting Firm hereunder). All fees and expenses of the Accounting
Firm will be borne solely by the Company. Any Gross-Up Payment, as determined
pursuant to this Section 10, will be paid by the Company to Executive within
five days of the receipt of the Accounting Firm's determination. Any
determination by the Accounting Firm will be binding upon the Company and
Executive. As a result of the uncertainty in the application of Section 4999 of
the Code at the time of the initial determination by the Accounting Firm
hereunder, it is possible that Gross-Up Payments which will not have been made
by the Company should have been made ("Underpayment"), consistent with the
calculations required to be made hereunder. In the event that the Company
exhausts its remedies pursuant to Section 10(c) and Executive thereafter is
required to make a payment of any Excise Tax, the Accounting Firm will determine
the amount of the Underpayment that has occurred and any such Underpayment will
be promptly paid by the Company to or for the benefit of Executive.
-12-
(c) The Executive will notify the Company in writing of any claim by
the Internal Revenue Service that, if successful, would require the payment by
the Company of the Gross-Up Payment. Such notification will be given as soon as
practicable but no later than ten business days after Executive is informed in
writing of such claim and apprises the Company of the nature of such claim and
the date on which such claim is requested to be paid. The Executive will not pay
such claim prior to the expiration of the 30-day period following the date on
which it gives such notice to the Company (or such shorter period ending on the
date that any payment of taxes with respect to such claim is due). If the
Company notifies Executive in writing prior to the expiration of such period
that it desires to contest such claim, Executive will:
(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 reasonably requests 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
effectively to contest such claim, and
(iv) permit the Company to participate in any proceedings
relating to such claim;
provided, however, that the Company will bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest and will indemnify and hold Executive harmless, on an
after-tax basis, for any Excise Tax or income tax (including interest and
penalties with respect thereto) imposed as a result of such representation and
payment of costs and expenses. Without limitation of the foregoing provisions of
this Section 10(c), the Company will control all proceedings taken in connection
with such contest and, at its sole option, may pursue or forgo any and all
administrative appeals, proceedings, hearings and conferences with the taxing
authority in respect of such claim and may, at its sole option, either direct
Executive to pay the tax claimed and xxx for a refund or contest the claim in
any permissible manner, and Executive agrees to prosecute such contest to a
determination before any administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts, as the Company will determine;
provided, however, that if the Company directs Executive to pay such claim and
xxx for a refund, the Company will advance the amount of such payment to
Executive, on an interest-free basis and will indemnify and hold Executive
harmless, on an after-tax basis, from any 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; and further
provided that any extension of the statute of limitations relating to payment of
taxes for the taxable year of Executive with respect to which such contested
amount is claimed to be due is limited
-13-
solely to such contested amount. Furthermore, the Company's control of the
contest will be limited to issues with respect to which a Gross-Up Payment would
be payable hereunder and Executive will be entitled to settle or contest, as the
case may be, any other issue raised by the Internal Revenue Service or any other
taxing authority.
(d) If, after the receipt by Executive of an amount advanced by the
Company pursuant to Section 10(c), Executive becomes entitled to receive any
refund with respect to such claim, Executive will (subject to the Company's
complying with the requirements of Section 10(c)) promptly pay to the Company
the amount of such refund (together with any interest paid or credited thereon
after taxes applicable thereto). If, after the receipt by Executive of an amount
advanced by the Company pursuant to Section 10(c), a determination is made that
Executive is not entitled to any refund with respect to such claim and the
Company does not notify Executive in writing of its intent to contest such
denial of refund prior to the expiration of 30 days after such determination,
then such advance will be forgiven and will not be required to be repaid and the
amount of such advance will offset, to the extent thereof, the amount of
Gross-Up Payment required to be paid.
11. Costs of Enforcement. Unless otherwise provided by the arbitrator(s) in
an arbitration proceeding pursuant to Section 14 hereof, in any action taken in
good faith relating to the enforcement of this Agreement or any provision
herein, Executive will be entitled to be paid any and all costs and expenses
incurred by him in enforcing or establishing his rights thereunder, including,
without limitation, reasonable attorneys' fees, whether suit be brought or not,
and whether or not incurred in trial, bankruptcy or appellate proceedings, but
only if Executive is determined to be the substantially prevailing party in the
enforcement proceeding.
12. Representations and Warranties. Except as described in Exhibit B
hereto, Executive hereby represents and warrants to the Company that Executive
is not a party to, or otherwise subject to, any covenant not to compete with any
person or entity, and Executive's execution of this Agreement and performance of
his obligations hereunder will not violate the terms or conditions of any
contract or obligation, written or oral, between Executive and any other person
or entity.
13. Restrictions on Conduct of Executive.
(a) General. Executive and the Company understand and agree that the
purpose of the provisions of this Section 13 is to protect legitimate business
interests of the Company, as more fully described below, and is not intended to
eliminate Executive's post-employment competition with the Company per se, nor
is it intended to impair or infringe upon Executive's right to work, earn a
living, or acquire and possess property from the fruits of his labor. Executive
hereby acknowledges that the post-employment restrictions set forth in this
Section 13 are reasonable and that they do not, and will not, unduly impair his
ability to earn a living after the termination of this Agreement.
-14-
Therefore, subject to the limitations of reasonableness imposed by law,
Executive will be subject to the restrictions set forth in this Section 13.
(b) Definitions. The following terms used in this Section 13 have the
meanings assigned to them below, which definitions apply to both the singular
and the plural forms of such terms:
"Competitive Position" means any employment with a Competitor in
which Executive will use or is likely to use any Confidential Information or
Trade Secrets, or in which Executive has duties for such Competitor that relate
to Competitive Services and that are the same or similar to those services
actually performed by Executive for the Company;
"Competitive Services" means the provision of health information
products and services, including, without limitation, practice management
systems, value-added networks, information management, health management
services and health-related e-commerce.
"Competitor" means any Person engaged, wholly or in part, in
Competitive Services, including, but not limited to, as of the date of this
Agreement, Siemens Medical Solutions, McKesson Corporation and its subsidiaries,
Verispan, IMS Health Incorporated, PDX and its affiliates, IDX Systems
Corporation, WebMD Corporation including Envoy, Cardinal Health and its
subsidiaries, QS1, Ateb Inc, PCS and ArcLight Systems.
"Confidential Information" means all information regarding the
Company, its activities, business or clients that is the subject of reasonable
efforts by the Company to maintain its confidentiality and that is not generally
disclosed by practice or authority to persons not employed by the Company, but
that does not rise to the level of a Trade Secret. "Confidential Information"
includes, but is not limited to, financial plans and data concerning the
Company; management planning information; business plans; operational methods;
market studies; marketing plans or strategies; product development techniques or
plans; lists of current or prospective customers; details of customer contracts;
current and anticipated customer requirements; past, current and planned
research and development; business acquisition plans; and new personnel
acquisition plans. "Confidential Information" does not include information that
has become generally available to the public by the act of one who has the right
to disclose such information without violating any right or privilege of the
Company. This definition will not limit any definition of "confidential
information" or any equivalent term under state or federal law.
"Determination Date" means the date of termination of Executive's
employment with the Company for any reason whatsoever or any earlier date of an
alleged breach of the Restrictive Covenants by Executive.
-15-
"Person" means any individual or any corporation, partnership,
joint venture, limited liability company, association or other entity or
enterprise.
"Principal or Representative" means a principal, owner, partner,
shareholder, joint venturer, investor, member, trustee, director, officer,
manager, employee, agent, representative or consultant.
"Protected Customers" means any Person to whom the Company has
sold its products or services or solicited to sell its products or services
during the twelve (12) months prior to the Determination Date.
"Protected Employees" means employees of the Company who were
employed by the Company at any time within six (6) months prior to the
Determination Date.
"Restricted Period" means the Employment Period and a period
extending eighteen (18) months from the termination of Executive's employment
with the Company.
"Restricted Territory" means the state of Georgia, any other
state in which the Company has an office location, and any country outside of
the United States in which the Company has an office location.
"Restrictive Covenants" means the restrictive covenants contained
in Section 13(c) hereof.
"Trade Secret" means all information, without regard to form,
including, but not limited to, technical or nontechnical data, a formula, a
pattern, a compilation, a program, a device, a method, a technique, a drawing, a
process, financial data, financial plans, product plans, distribution lists or a
list of actual or potential customers, advertisers or suppliers which is not
commonly known by or available to the public and which information: (A) derives
economic value, actual or potential, from not being generally known to, and not
being readily ascertainable by proper means by, other persons who can obtain
economic value from its disclosure or use; and (B) is the subject of efforts
that are reasonable under the circumstances to maintain its secrecy. Without
limiting the foregoing, Trade Secret means any item of Confidential Information
that constitutes a "trade secret(s)" under the common law or applicable state
law.
(c) Restrictive Covenants.
(i) Restriction on Disclosure and Use of Confidential Information
and Trade Secrets. Executive understands and agrees that the Confidential
Information and Trade Secrets constitute valuable assets of the Company and its
affiliated entities, and may not be converted to Executive's own use.
Accordingly, Executive hereby agrees that Executive will not, directly or
indirectly, at any time during the Restricted Period reveal,
-16-
divulge, or disclose to any Person not expressly authorized by the Company any
Confidential Information, and Executive will not, directly or indirectly, at any
time during the Restricted Period use or make use of any Confidential
Information in connection with any business activity other than that of the
Company. Throughout the term of this Agreement and at all times after the date
that this Agreement terminates for any reason, Executive will not directly or
indirectly transmit or disclose any Trade Secret of the Company to any Person,
and will not make use of any such Trade Secret, directly or indirectly, for
himself or for others, without the prior written consent of the Company. The
parties acknowledge and agree that this Agreement is not intended to, and does
not, alter either the Company's rights or Executive's obligations under any
state or federal statutory or common law regarding trade secrets and unfair
trade practices.
Anything herein to the contrary notwithstanding, Executive will
not be restricted from disclosing or using Confidential Information that is
required to be disclosed by law, court order or other legal process; provided,
however, that in the event disclosure is required by law, Executive will provide
the Company with prompt notice of such requirement so that the Company may seek
an appropriate protective order prior to any such required disclosure by
Executive.
(ii) Nonsolicitation of Protected Employees. Executive
understands and agrees that the relationship between the Company and each of its
Protected Employees constitutes a valuable asset of the Company and may not be
converted to Executive's own use. Accordingly, Executive hereby agrees that
during the Restricted Period Executive will not directly or indirectly on
Executive's own behalf or as a Principal or Representative of any Person or
otherwise solicit or induce any Protected Employee to terminate his or her
employment relationship with the Company or to enter into employment with any
other Person.
(iii) Restriction on Relationships with Protected Customers.
Executive understands and agrees that the relationship between the Company and
each of its Protected Customers constitutes a valuable asset of the Company and
may not be converted to Executive's own use. Accordingly, Executive hereby
agrees that, during the Restricted Period, Executive will not, without the prior
written consent of the Company, directly or indirectly, on Executive's own
behalf or as a Principal or Representative of any Person, solicit, divert, take
away or attempt to solicit, divert or take away a Protected Customer for the
purpose of providing or selling Competitive Services; provided, however, that
the prohibition of this covenant will apply only to Protected Customers with
whom Executive had Material Contact on the Company's behalf during the twelve
(12) months immediately preceding the termination of his employment hereunder.
For purposes of this Agreement, Executive had "Material Contact" with a
Protected Customer if (a) he had business dealings with the Protected Customer
on the Company's behalf; (b) he was responsible for supervising or coordinating
the dealings between the Company and the Protected Customer; or (c) he obtained
Trade Secrets or Confidential Information about the Protected Customer as a
result of his association with the Company.
-17-
(iv) Noncompetition with the Company. The parties acknowledge:
(A) that Executive's services under this Agreement require special expertise and
talent in the provision of Competitive Services and that Executive will have
substantial contacts with customers, suppliers, advertisers and vendors of the
Company; (B) that pursuant to this Agreement, Executive will be placed in a
position of trust and responsibility and he will have access to a substantial
amount of Confidential Information and Trade Secrets and that the Company is
placing him in such position and giving him access to such information in
reliance upon his agreement not to compete with the Company during the
Restricted Period; (C) that due to his management duties, Executive will be the
repository of a substantial portion of the goodwill of the Company and would
have an unfair advantage in competing with the Company; (D) that due to
Executive's special experience and talent, the loss of Executive's services to
the Company under this Agreement cannot reasonably or adequately be compensated
solely by damages in an action at law; (E) that Executive is capable of
competing with the Company; and (F) that Executive is capable of obtaining
gainful, lucrative and desirable employment that does not violate the
restrictions contained in this Agreement. In consideration of the compensation
and benefits being paid and to be paid by the Company to Executive hereunder,
Executive hereby agrees that, during the Restricted Period, Executive will not,
without prior written consent of the Company, directly or indirectly seek or
obtain a Competitive Position in the Restricted Territory with a Competitor;
provided, however, that the provisions of this Agreement will not be deemed to
prohibit the ownership by Executive of any securities of the Company or its
affiliated entities or not more than five percent (5%) of any class of
securities of any corporation having a class of securities registered pursuant
to the Securities Exchange Act of 1934, as amended.
(v) Cooperation. Throughout the term of this Agreement and at all
times after the date that this Agreement terminates for any reason, Executive
will not make statements detrimental to the interests of nor engage in any
activities detrimental to the Company or its officers, directors, stockholders,
trustees, employees, agents, parent corporations, subsidiaries, affiliates,
estates, successors, assigns and attorneys, nor will Executive make any
statements about any of the aforementioned parties to the press (including
without limitation any newspaper, magazine, radio station or television station)
without the prior written consent of the Company. Executive will also cooperate
with the Company and its affiliates as a witness in all matters about which he
has knowledge as a result of his position with the Company and its affiliates if
the Company requests his testimony.
(d) Enforcement of Restrictive Covenants.
(i) Rights and Remedies Upon Breach. In the event Executive
breaches, or threatens to commit a breach of, any of the provisions of the
Restrictive Covenants, the Company will have the following rights and remedies,
which will be independent of any others and severally enforceable, and will be
in addition to, and not in lieu of, any other rights and remedies available to
the Company at law or in equity:
-18-
(A) the right and remedy to enjoin, preliminarily and
permanently, Executive from violating or threatening to violate the Restrictive
Covenants and to have the Restrictive Covenants specifically enforced by any
court of competent jurisdiction, it being agreed that any breach or threatened
breach of the Restrictive Covenants would cause irreparable injury to the
Company and that money damages would not provide an adequate remedy to the
Company; and
(B) the right and remedy to require Executive to account for
and pay over to the Company all compensation, profits, monies, accruals,
increments or other benefits derived or received by Executive hereunder after
his Date of Termination, excluding any Accrued Obligations.
(ii) Severability of Covenants. Executive acknowledges and agrees
that the Restrictive Covenants are reasonable and valid in time and scope and in
all other respects. The covenants set forth in this Agreement will be considered
and construed as separate and independent covenants. Should any part or
provision of any covenant be held invalid, void or unenforceable in any court of
competent jurisdiction, such invalidity, voidness or unenforceability will not
render invalid, void or unenforceable any other part or provision of this
Agreement. If any portion of the foregoing provisions is found to be invalid or
unenforceable by a court of competent jurisdiction because its duration, the
territory, the definition of activities or the definition of information covered
is considered to be invalid or unreasonable in scope, the invalid or
unreasonable term will be redefined, or a new enforceable term provided, such
that the intent of the Company and Executive in agreeing to the provisions of
this Agreement will not be impaired and the provision in question will be
enforceable to the fullest extent of the applicable laws.
14. Arbitration. Any claim or dispute arising under this Agreement (other
than under Section 13) will be subject to arbitration, and prior to commencing
any court action, the parties agree that they will arbitrate all such
controversies. The arbitration will be conducted in Atlanta, Georgia, in
accordance with the Employment Dispute Rules of the American Arbitration
Association and the Federal Arbitration Act, 9 U.S.C. Section 1, et. seq. The
arbitrator(s) will be authorized to award both liquidated and actual damages, in
addition to injunctive relief, but no punitive damages. The arbitrator(s) may
also award attorney's fees and costs, without regard to any restriction on the
amount of such award under Georgia or other applicable law. Such an award will
be binding and conclusive upon the parties hereto, subject to 9 U.S.C. Section
10. Each party will have the right to have the award made the judgment of a
court of competent jurisdiction.
GSM
Executive
WH
Company
-19-
15. Assignment and Successors.
(a) This Agreement is personal to Executive and without the prior
written consent of the Company will not be assignable by Executive otherwise
than by will or the laws of descent and distribution. This Agreement will inure
to the benefit of and be enforceable by the Executive's legal representatives.
(b) This Agreement will inure to the benefit of and be binding upon
the Company and its successors and assigns.
(c) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to assume
expressly and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place. As used in this Agreement, "Company" means the Company as
hereinbefore defined and any successor to its business and/or assets as
aforesaid which assumes and agrees to perform this Agreement by operation of
law, or otherwise.
16. Miscellaneous.
(a) Waiver. Failure of either party to insist, in one or more
instances, on performance by the other in strict accordance with the terms and
conditions of this Agreement will not be deemed a waiver or relinquishment of
any right granted in this Agreement or of the future performance of any such
term or condition or of any other term or condition of this Agreement, unless
such waiver is contained in a writing signed by the party making the waiver.
(b) Severability. If any provision or covenant, or any part thereof,
of this Agreement should be held by any court to be invalid, illegal or
unenforceable, either in whole or in part, such invalidity, illegality or
unenforceability will not affect the validity, legality or enforceability of the
remaining provisions or covenants, or any part thereof, of this Agreement, all
of which will remain in full force and effect.
(c) Other Agents. Nothing in this Agreement is to be interpreted as
limiting the Company from employing other personnel on such terms and conditions
as may be satisfactory to it.
(d) Entire Agreement. Except as provided herein, this Agreement
contains the entire agreement between the Company and Executive with respect to
the subject matter hereof and, from and after the Effective Date, this Agreement
will supersede any other agreement between the parties with respect to the
subject matter hereof.
(e) Governing Law. Except to the extent preempted by federal law, and
without regard to conflict of laws principles, the laws of the State of Georgia
will govern
-20-
this Agreement in all respects, whether as to its validity, construction,
capacity, performance or otherwise.
(f) Notices. All notices, requests, demands and other communications
required or permitted hereunder will be in writing and will be deemed to have
been duly given if delivered or three days after mailing if mailed, first class,
certified mail, postage prepaid:
To Company: NDCHealth Corporation
National Data Plaza
Attention: Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000-0000
To Executive: G. Xxxxx XxxXxxxxx
0000 Xxxxx Xxxx
Xxxxxxxxx, XX 00000
Any party may change the address to which notices, requests, demands and other
communications will be delivered or mailed by giving notice thereof to the other
party in the same manner provided herein.
(g) Amendments and Modifications. This Agreement may be amended or
modified only by a writing signed by both parties hereto, which makes specific
reference to this Agreement.
(h) Binding Effect. Except as otherwise provided in this Agreement,
every covenant, term and provision of this Agreement will bind and inure to the
benefit of each party's respective successors, transferees and permitted
assigns.
(i) Construction. In construing and enforcing this Agreement, the
following rules will be followed:
(1) Each provision of this Agreement will be construed simply
according to its fair meaning and not strictly for or against any party. No
consideration will be given to the fact or presumption that any party had a
greater or lesser hand in drafting this Agreement.
(2) In construing and enforcing this Agreement, no consideration
will be given to the captions of the articles, sections, subsections, and
clauses of this Agreement, which are inserted for convenience in organizing and
locating the provisions of this Agreement, not as an aid in its construction.
(3) Plural words will be understood to include their singular
forms, and vice versa.
-21-
(4) The word "include" and its syntactical forms mean "include,
but are not limited to," and corresponding syntactical forms. The principal of
ejusdem generis will not be used to limit the scope of the category of things
illustrated by the items mentioned in a clause introduced by the word
"including."
(5) A defined term has its defined meaning through this
Agreement, regardless of where in this Agreement the term is defined.
(6) Except as otherwise provided in this Agreement, a reference
to an Article, Section, or clause means an article, section, or clause of this
Agreement and may be understood to mean, for example, "Section 5.1 of this
Agreement" or "Section 5.1 hereof." The term "Section" may be used variously to
identify entire Sections (as in "Section 6.8"), subsections (as in "Section
6.8(a)"), and clauses (as in "Section 6.8(h)(iii)").
(j) Incorporation by Reference. The exhibits to this Agreement are
incorporated in this Agreement by reference.
(k) Time. Time is of the essence in this Agreement.
(l) Counterparts. This Agreement may be executed in any number of
counterparts with the same effect as if all of the parties had signed the same
document. All counterparts will be construed together and will constitute one
agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Employment Agreement as of the date first above written.
NDCHEALTH CORPORATION
By: /s/ Xxxxxx X. Xxxx
------------------------------------
Xxxxxx X. Xxxx
Chief Executive Officer
EXECUTIVE:
/s/ G. Xxxxx XxxXxxxxx
----------------------------------------
-22-
EXHIBIT A
Form of Release
This Release is granted effective as of the ___ day of _____________,
_____, by _________ ("Executive") in favor of NDCHealth Corporation (the
"Company"). This is the Release referred to in that certain Employment Agreement
dated as of ____________ by and between the Company and Executive (the
"Employment Agreement"). Executive gives this Release in consideration of the
Company's promises and covenants as recited in the Employment Agreement, with
respect to which this Release is an integral part.
1. Release of the Company. Executive, for himself, his successors, assigns,
attorneys, and all those entitled to assert his rights, now and forever hereby
releases and discharges the Company and its respective officers, directors,
stockholders, trustees, employees, agents, parent corporations, subsidiaries,
affiliates, estates, successors, assigns and attorneys ("the Released Parties"),
from any and all claims, actions, causes of action, sums of money due, suits,
debts, liens, covenants, contracts, obligations, costs, expenses, damages,
judgments, agreements, promises, demands, claims for attorney's fees and costs,
or liabilities whatsoever, in law or in equity, which Executive ever had or now
has against the Released Parties, including any claims arising by reason of or
in any way connected with any employment relationship which existed between the
Company or any of its parents, subsidiaries, affiliates, or predecessors, and
Executive. It is understood and agreed that this Release is intended to cover
all actions, causes of action, claims or demands for any damage, loss or injury,
which may be traced either directly or indirectly to the aforesaid employment
relationship, or the termination of that relationship, that Executive has, had
or purports to have, from the beginning of time to the date of this Release,
whether known or unknown, that now exists, no matter how remotely they may be
related to the aforesaid employment relationship including but not limited to
claims for employment discrimination under federal or state law, except as
provided in Paragraph 2; claims arising under Title VII of the Civil Rights Act,
42 U.S.C. Section 2000(e), et seq. or the Americans With Disabilities Act, 42
U.S.C. Section 12101 et seq.; claims for statutory or common law wrongful
discharge, including any claims arising under the Fair Labor Standards Act, 29
U.S.C. Section 201 et seq.; claims for attorney's fees, expenses and costs;
claims for defamation; claims for wages or vacation pay; claims for benefits,
including any claims arising under the Employee Retirement Income Security Act,
29 U.S.C. Section 1001, et seq.; and provided, however, that nothing herein will
release the Company of its obligations to Executive under the Employment
Agreement or any other contractual obligations between the Company or its
affiliates and Executive, or any indemnification obligations to Executive under
the Company's bylaws, certificate of incorporation, Delaware law or otherwise.
2. Release of Claims Under Age Discrimination in Employment Act. Without
limiting the generality of the foregoing, Executive agrees that by executing
this Release, he has released and waived any and all claims he has or may have
as of the date of this Release for age discrimination under the Age
Discrimination in Employment Act, 29 U.S.C. Section 621, et seq. It is
understood that Executive is advised to consult with an attorney prior to
executing this Release; that he in fact has consulted a knowledgeable,
competent attorney regarding this Release; that he may, before executing this
Release, consider this Release for a period of twenty-one (21) calendar days;
and that the consideration he receives for this Release is in addition to
amounts to which he was already entitled. It is further understood that this
Release is not effective until seven (7) calendar days after the execution of
this Release and that Executive may revoke this Release within seven (7)
calendar days from the date of execution hereof.
Executive agrees that he has carefully read this Release and is signing it
voluntarily. Executive acknowledges that he has had twenty one (21) days from
receipt of this Release to review it prior to signing or that, if Executive is
signing this Release prior to the expiration of such 21-day period, Executive is
waiving his right to review the Release for such full 21-day period prior to
signing it. Executive has the right to revoke this release within seven (7) days
following the date of its execution by him. However, if Executive revokes this
Release within such seven (7) day period, no severance benefit will be payable
to him under the Employment Agreement and he will return to the Company any such
payment received prior to that date.
EXECUTIVE HAS CAREFULLY READ THIS RELEASE AND ACKNOWLEDGES THAT IT
CONSTITUTES A GENERAL RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS AGAINST THE
COMPANY UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT. EXECUTIVE ACKNOWLEDGES
THAT HE HAS HAD A FULL OPPORTUNITY TO CONSULT WITH AN ATTORNEY OR OTHER ADVISOR
OF HIS CHOOSING CONCERNING HIS EXECUTION OF THIS RELEASE AND THAT HE IS SIGNING
THIS RELEASE VOLUNTARILY AND WITH THE FULL INTENT OF RELEASING THE COMPANY FROM
ALL SUCH CLAIMS.
-2-
EXHIBIT B
Terms of Agreement Regarding
Employment Agreement with Cerner Corporation
1. With respect to his prior employment, Executive represents that he had a
contract of employment with Cerner Corporation ("Cerner") that contains
restrictive covenants, including non-competition provisions, that are applicable
as of the Effective Date of this Agreement.
2. Executive understands that if Cerner seeks to obtain judicial
restrictions on Executive's employment with the Company under the non-compete
provisions of his contract with Cerner, the Company will defend his right to
work with the Company. If a court issues an order or decree that Executive's
employment with the Company violates the terms of the non-compete provisions of
his contract with Cerner, such an event will be deemed to be "Good Reason" under
this Agreement.
3. If the Company is acquired by a company that the Company in good faith
considers to be a competitor of Cerner, such an event will be deemed to be "Good
Reason" under this Agreement.
4. Executive understands that the Company will not under any circumstances
solicit, accept or use any confidential information Executive may have obtained
as a result of his employment with Cerner that is subject to the confidentiality
provisions of Section 3 of his employment agreement with Cerner. In Executive's
employment with the Company, the Company will not solicit or request in anyway
that Executive violate the non-solicitation provisions of Section 7.E of his
employment agreement with Cerner.
AMENDMENT TO
EMPLOYMENT AGREEMENT
THIS AMENDMENT (the "Amendment"), effective as of December 29, 2005, by and
between NDCHealth Corporation, a Delaware corporation (the "Company"), and G.
Xxxxx XxxXxxxxx ("Executive"), amends that certain Employment Agreement, dated
as of February 9, 2005, by and between the Company and Executive, as heretofore
amended (the "Employment Agreement").
In consideration of the mutual promises and covenants herein contained, the
parties hereto agree as follows:
1. Subsection 8(d)(iii) is hereby deleted in its entirety and the following
new Subsection 8(d)(iii) is substituted in lieu thereof:
"(iii) for 18 months after the Date of Termination, if and to the extent
Executive timely elects COBRA continuation coverage, the Company will reimburse
Executive the full premium amount of such COBRA continuation coverage and will
report taxable income to Executive equal to the full premium amount; provided,
however, that the Company's obligation to provide such reimbursements will cease
if Executive violates any of the Restrictive Covenants (as defined in Section
13(b) of this Agreement) and fails to remedy such violation to the satisfaction
of the Board within 10 days of notice of such violation; and"
2. As amended hereby, the Employment Agreement, as heretofore amended,
shall be and remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
first above written.
NDCHEALTH CORPORATION
By: /s/ Xxxxxxxx X.X. Xxxxx
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EXECUTIVE
/s/ G. Xxxxx XxxXxxxxx
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G. Xxxxx XxxXxxxxx
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