EXHIBIT 10.58
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement (the "Agreement") is
made and entered into this 7th day of April, 2004, by and between Per-Se
Technologies, Inc. (formerly known as Medaphis Corporation), a Delaware
corporation (the "Company"), and Xxxxx X. Xxxxxx, a resident of the State of
Georgia ("Employee"). This Agreement amends, restates and supercedes the
Employment Agreement, dated as of June 5, 1998, between the Company and
Employee.
Statement of Background Information
The Company through its Services Division, or otherwise, renders to
hospitals, physicians, and/or other healthcare organizations and providers: (a)
billing services, accounts receivable management services, collection services,
electronic claims services, financial management services, and practice and
facilities management services; (b) eligibility verification and certification
for Medicaid, Medicare and other healthcare assistance programs; (c) filing and
other medical claims securitization services; (d) medical coverage information
services; (e) medical and insurance claims monitoring and tracking services; (f)
physician practice management services; (g) physician network management
services; and (h) managed care services (collectively, the "Business").
Statement of Agreement
In consideration of the mutual covenants, promises and conditions set
forth in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. Employment. Effective as of April 8, 2004 (the "Amendment
Effective Date"), the Company hereby employs Employee and Employee hereby
accepts such employment upon the terms and conditions set forth in this
Agreement. For purposes of Sections 6 and 7 of this Agreement (but not for any
other purpose), "employment" shall mean any period of time during which the
Company is paying Employee salary, wages, or any other amounts, whether or not
Employee is currently performing services for the Company at the time of such
payment.
2. Duties of Employee. From and after the Amendment Effective
Date, Employee will be employed as a part-time employee of the Company,
reporting to the Chief Executive Officer. Employee's primary responsibilities to
the Company in such part-time capacity will be to provide advice and counsel
with respect to pending and potential litigation that relates to matters that
were within the scope of Employee's former service as president of the Company's
Physician Services division. Employee agrees to perform and discharge such
related duties as may be assigned to Employee from time to time by the Company
to the reasonable satisfaction of the Company. Employee also agrees to comply
with all applicable Company policies, standards and regulations as promulgated
by the officers of the Company and to follow the instructions and directives of
Employee's superiors within the Company. The Company acknowledges that as a
part-time employee, Employee may devote substantial portions of his professional
and business-
related time to other matters unrelated to the Business of the Company,
including without limitation serving as the Chief Executive Officer of Smart
Document Solutions, Inc.
3. Term. This Agreement is terminable at will by either party at
any time, upon ten (10) days' prior notice to the other. Upon such termination
by either party, the Company shall have no further obligations to Employee under
this Agreement other than payment to Employee of (i) Employee's base salary
through the date of termination to the extent not theretofore paid, and (ii) any
other amounts or benefits required to be paid or provided or which Employee is
eligible to receive under any plan, program, policy or practice of the Company,
in each case to the extent theretofore unpaid.
4. Compensation and Benefits.
(a) Annual Salary. During the term of this Agreement from
and after the Amendment Effective Date, for all services rendered by Employee
under this Agreement, the Company will pay Employee a base salary at the rate of
Twelve Thousand Dollars and No/100 ($12,000.00) per annum in, payable in
accordance with the Company's payroll practices as in effect from time to time.
(b) No Incentive Compensation. Employee shall not be
eligible to participate in the Company's incentive compensation plans and
programs from and after the Amendment Effective Date. However, any equity awards
from the Company held by Employee as of the Amendment Effective Date will
continue to vest for as long as Employee is employed by the Company under the
terms of this Agreement and such awards shall remain exercisable during the term
of this Agreement and for any post-termination exercise period specified in such
awards.
(c) Other Benefits. Employee will be entitled to such
fringe benefits as may be provided from time to time by the Company to its
part-time employees.
(d) Business Expenses. Employee will be reimbursed for
all reasonable expenses incurred in the discharge of Employee's duties under
this Agreement pursuant to the Company's standard reimbursement policies.
(e) Withholding. The Company will deduct and withhold
from the payments made to Employee under this Agreement, state and federal
income taxes, FICA and other amounts normally withheld from compensation due
employees.
5. Non-Disclosure of Proprietary Information. Employee recognizes
and acknowledges that the Trade Secrets (as defined below) and Confidential
Information (as defined below) of the Company and its affiliates and all
physical embodiments thereof (as they may exist from time to time, collectively,
the "Proprietary Information") are valuable, special and unique assets of the
Company's and its affiliates' businesses. Employee further acknowledges that
access to such Proprietary Information is essential to the performance of
Employee's duties under this Agreement. Therefore, in order to obtain access to
such Proprietary Information, Employee agrees that Employee shall hold in
confidence all Proprietary Information and will not reproduce, use, distribute,
disclose, publish or otherwise disseminate any Proprietary Information, in whole
or in part, and will take no action causing, or fail to take any action
necessary to prevent causing, any Proprietary Information to lose its character
as Proprietary Information, nor will Employee
make use of any such information for Employee's own purposes or for the benefit
of any person, firm, corporation, association or other entity (except the
Company and its affiliates) under any circumstances, except in each case with
the prior written consent of the Company.
For purposes of this Agreement, the term "Trade Secrets" means
information, including, but not limited to, any technical or non-technical data,
a formula, pattern, compilation, program, device, method, technique, drawing,
process, financial data, financial plan, product plan, list of actual or
potential customers or suppliers, or other information similar to any of the
foregoing which 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 derive economic value from its disclosure or use. The term
"Confidential Information" means any and all data or information of the Company
or its affiliates, other than Trade Secrets, which is valuable to the Company or
its affiliates and which is not generally known to competitors of the Company or
its affiliates. The provisions of this Section 5 will apply during Employee's
employment by the Company and for a two (2) year period thereafter with respect
to Confidential Information, and during Employee's employment by the Company and
at any and all times thereafter with respect to Trade Secrets. These
restrictions will not apply to any Proprietary Information that is in the public
domain, provided that Employee was not responsible, directly or indirectly, for
such Proprietary Information entering the public domain without the Company's
prior written consent. This Section 5, along with Sections 6, 7, 8, 9, 10 and 11
of this Agreement, shall survive termination of this Agreement. Nothing in this
Agreement shall diminish the rights, of the Company and its affiliates regarding
the protection of trade secrets pursuant to applicable Georgia law.
6. (a) Non-Competition Covenant. During Employee's employment
by the Company and for a period of two (2) years following any termination of
Employee's employment for whatever reason, Employee will not, directly or
indirectly, on Employee's own behalf or in the service of or on behalf of any
other individual or entity, compete with the Company within the Geographical
Area (as hereinafter defined). The term "compete" means to engage in, have any
equity or profit interest in, make any loan to or for the benefit of, or render
any services of any kind to, directly or indirectly, on Employee's own behalf or
in the service of or on behalf of any other individual or entity, either as a
proprietor, employee, agent, independent contractor, consultant, director,
officer, partner or stockholder (other than a stockholder of a corporation
listed on a national securities exchange or whose stock is regularly traded in
the over-the-counter market, provided that Employee at no time owns, directly or
indirectly, in excess of one percent (1.0%) of the outstanding stock of any
class of any such corporation) any business which provides Business products or
services. For purposes of this Agreement, the term "Geographical Area" means the
territory located within a seventy-five (75) mile radius of each facility for
which Employee has management responsibility during Employee's employment with
the Company.
(b) Non-Solicitation of Clients Covenant. Employee agrees
that during Employee's employment by the Company and for a period of two (2)
years following the termination of Employee's employment for whatever reason,
Employee will not, directly or indirectly, on Employee's own behalf or in the
service of or on behalf of any other individual or entity, divert, solicit or
attempt to solicit any individual or entity (i) who is a client of the Company
at any time during the six (6) month period prior to Employee's termination of
employment with the Company ("Client"), or was actively sought by the Company as
a prospective client, and (ii) with whom Employee had material contact while
employed by the Company to provide Business services or products to such Clients
or prospects.
(c) Construction. The parties hereto agree that any
judicial authority construing all or any portion of this Section 6 or Section 7
below may, if it chooses, sever any portion of the Geographical Area, client
base, prospective relationship or prospect list or any prohibited business
activity from the coverage of such Section and to apply the provisions of such
Section to the remaining portion of the Geographical Area, the client base or
the prospective relationship or prospect list, or the remaining business
activities not so severed by such judicial authority. In addition, it is the
intent of the parties that the judicial authority may, if it chooses, replace
each such severed provision with a provision as similar in terms to such severed
provision as may be possible and be legal, valid and enforceable. It is the
intent of the parties that Sections 6 and 7 be enforced to the maximum extent
permitted by law. In the event that any provision of either such Section is
determined not to be specifically enforceable, the Company shall nevertheless be
entitled to bring an action to seek to recover monetary damages as a result of
the breach of such provision by Employee.
7. Non-Solicitation of Employees Covenant. Employee further
agrees and represents that during Employee's employment by the Company and for a
period of two (2) years following any termination of Employee's employment for
whatever reason, Employee will not, directly or indirectly, on Employee's own
behalf or in the service of or on behalf of any other individual or entity,
divert, solicit or hire away, or attempt to divert, solicit or hire away, to or
for any individual or entity which is engaged in providing Business services or
products, any person, employed by the Company for whom Employee had supervisory
responsibility or with whom Employee had material contact while employed by the
Company, whether or not such employee is a full-time employee or temporary
employee of the Company, whether or not such employee is employed pursuant to
written agreement and whether or not such employee is employed for a determined
period or at will.
8. Existing Restrictive Covenants. Employee represents and
warrants that Employee's employment with the Company does not and will not
breach any agreement which Employee has with any other employer to keep in
confidence confidential information or not to compete with any such other
employer. Employee will not disclose to the Company or use on its behalf any
Confidential information of any other party required to be kept confidential by
Employee.
9. Return of Proprietary Information. Employee acknowledges that
as a result of Employee's employment with the Company, Employee may come into
the possession and control of Proprietary Information, such as proprietary
documents, drawings, specifications, manuals, notes, computer programs, or other
proprietary material. Employee acknowledges, warrants and agrees that Employee
will return to the Company all such items and any copies or excerpts thereof and
any other properties, files or documents obtained as a result of Employee's
employment with the Company, immediately upon the termination of Employee's
employment with the Company.
10. Proprietary Rights. During the course of Employee's employment
with the Company, Employee may make, develop or conceive of useful processes,
machines, compositions of matter, computer software, algorithms, works of
authorship expressing such algorithm, or any other discovery, idea, concept,
document or improvement which relates to or is useful to the Company's Business
(the "Inventions"), whether or not subject to copyright or patent protection,
and which may or may not be considered Proprietary Information. Employee
acknowledges that all such Inventions will be "works made for hire" under United
States copyright law and will remain the sole and exclusive property of the
Company. Employee also hereby assigns and agrees to assign to the Company, in
perpetuity, all right, title and interest Employee may have in and to such
Inventions, including without limitation, all copyrights, and the right to apply
for any form of patent, utility model, industrial design or similar proprietary
right recognized by any state, country or jurisdiction. Employee further agrees,
at the Company's request and expense, to do all things and sign all documents or
instruments necessary, in the opinion of the Company, to eliminate any ambiguity
as to the ownership of and rights of the Company to such Inventions, including
filing copyright and patent registrations and defending and enforcing in
litigation or otherwise all such rights. Employee will not be obligated to
assign to the Company any Invention made by Employee while in the Company's
employ which does not relate to any business or activity in which the Company is
or may reasonably be expected to become engaged, except that Employee is so
obligated if the same relates to or is based on Proprietary Information to which
Employee has had or will have had access during and by virtue of Employee's
employment or which arises out of work assigned to Employee by the Company.
Employee will not be obligated to assign any Invention which may be wholly
conceived by Employee after Employee leaves the employ of the Company, except
that Employee is so obligated if such Invention involves the utilization of
Proprietary Information obtained while in the employ of the Company. Employee is
not obligated to assign any Invention which relates to or would be useful in any
businesses or activities in which the Company is engaged if such Invention was
conceived and reduced to practice by Employee prior to Employee's employment
with the Company, whether pursuant to this Agreement or otherwise, provided that
all such Inventions are listed as of the date hereof on the attached Exhibit A.
11. Remedies. Employee agrees and acknowledges that the violation
of any of the covenants or agreements contained in Sections 5, 6, 7, 8, 9 and 10
of this Agreement would cause irreparable injury to the Company, that the remedy
at law for any such violation or threatened violation thereof would be
inadequate, and that the Company will be entitled, in. addition to any other
remedy, to temporary and permanent injunctive or other equitable relief without
the necessity of proving actual damages or posting a bond:
12. Notices. Any notice or communication under this Agreement will
be in writing and sent by registered or certified mail addressed to the
respective parties as follows:
If to the Company: If to Employee:
0000 Xx. Xxxxxxxxx Xxxxxxx Xxxxx X. Xxxxxx
Suite 300 5295 Woodridge Forest Trail
Atlanta, Georgia 30339 Xxxxxxx, Xxxxxxx 00000
Attn: General Counsel
13. Severability. Subject to the application of Section 17 to the
interpretation of Sections 6 and 7, in case one or more of the provisions
contained in this Agreement is for any reason held to be invalid, illegal or
unenforceable in any respect, the parties agree that it is their intent that the
same will not affect any other provision in this Agreement, and this Agreement
will be construed as if such invalid or illegal or unenforceable provision had
never been contained herein. It is the intent of the parties that this Agreement
be enforced to the maximum extent permitted by law.
14. Entire Agreement. This Agreement embodies the entire agreement
of the parties relating to the subject matter of this Agreement and supersedes
all prior agreements, oral or written, regarding the subject matter hereof. No
amendment or modification of this Agreement will be valid or binding upon the
parties unless made in writing and signed by the parties.
15. Binding Effect. This Agreement will be binding upon the
parties and their respective heirs, representatives, successors, transferees and
permitted assigns.
16. Assignment. This Agreement is one for personal services and
will not be assigned by Employee. The Company may assign this Agreement to any
of its subsidiaries or affiliated companies, provided that such subsidiary or
affiliate fulfills the obligations of the Company under this Agreement.
17. Governing Law. This Agreement is entered into and will be
interpreted and enforced pursuant to the laws of the State of Georgia. The
parties hereto hereby agree that an appropriate forum and venue for any disputes
between any of the parties hereto arising out of this Agreement shall be any
federal court in the state where the Company has its principal place of business
and each of the parties hereto hereby submits to the personal jurisdiction of
any such court. The foregoing shall not limit the rights of any party to obtain
execution of judgment in any other jurisdiction. The parties further agree, to
the extent permitted by law, that a final and nonappealable judgment against
either of them in any action or proceeding contemplated above shall be
conclusive and may be enforced in any other jurisdiction within or outside the
United States by suit on the judgment, a certified exemplified copy of which
shall be conclusive evidence of the fact and amount of such judgment.
18. Surviving Terms. Sections 5, 6, 7, 8, 9, 10, 11 and 17 of this
Agreement shall survive termination of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
PER-SE TECHNOLOGIES, INC.
By: /s/ XXXX X. XXXXXX
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EMPLOYEE:
/s/ XXXXX X. XXXXXX
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Xxxxx X. Xxxxxx
EXHIBIT A
INVENTIONS
Employee represent that there are no Inventions.
/s/ FBM
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Employee Initials
