EMPLOYMENT AGREEMENT
Exhibit 10.15
This
EMPLOYMENT AGREEMENT (the “Agreement”) is dated July 7, 2009 (the “Effective
Date”), and is entered into by and between EMDEON BUSINESS SERVICES, LLC, a Delaware
corporation (the “Company”, which shall include its subsidiaries and affiliates), and Xxxx
Xxxxxx (“Executive”).
WHEREAS, the Executive is party to that certain employment agreement, change in control
agreement, severance protection agreement and/or other agreement relating to employment terms and
severance payments (the “Prior Agreements”); and
WHEREAS, the Company wants to provide Executive with a new Agreement, which Agreement shall
supersede in its entirety the Prior Agreements according to the terms set forth herein.
NOW THEREFORE, in consideration of the promises and mutual covenants contained herein
(including, without limitation, the Company’s employment of Executive and the advantages and
benefits thereby inuring to Executive) and for other good and valuable consideration, the receipt,
adequacy and sufficiency of which are hereby acknowledged by each party hereto, the parties hereby
agree as follows:
1. Employment of Executive. The Company hereby employs Executive as Executive Vice
President, Payer Services and Executive hereby accepts such employment with the Company on the
terms set forth herein. Executive will report to the Chief Executive Officer or his designee and
perform such duties and services for the Company as may be designated from time to time. Executive
shall use his best and most diligent efforts to promote the interests of the Company and shall
devote all of his business time and attention to his employment under this Agreement. Executive
acknowledges that he will be required to travel in connection with the performance of his duties.
2. Compensation and Benefits.
2.1 Salary. Executive shall be paid for his services during the Employment Period (as
defined below) a base salary at the annual rate of $300,000. Any and all increases to Executive’s
base salary (as it may be increased, the “Base Salary”) shall be determined by the Board of
Directors of EBS Master LLC (the “Board”) (or such committee as may be designated by the
Board) in its sole discretion. Such Base Salary shall be payable in equal installments, no less
frequently than bi-monthly, pursuant to the Company’s customary payroll policies in force at the
time of payment, less any required or authorized payroll deductions.
2.2 Bonus. During the Employment Period, Executive shall be eligible to receive an
annual bonus, the target of which is 50% of Base Salary, which amount shall be determined in the
sole discretion of the Board (or such committee as may be designated by the Board) (the “Annual
Bonus”). Such Annual Bonus, if any, shall be
payable at such time as executive officer bonuses
are paid generally so long as Executive remains in the employ of the Company on the payment date.
2.3 Benefits. During the Employment Period, Executive shall be entitled to
participate, on the same basis and at the same level as other similarly situated senior executives
of the Company, in any group insurance, hospitalization, medical, health and accident, disability,
fringe benefit and tax-qualified retirement plans or programs of the Company now existing or
hereafter established to the extent that he is eligible under the general provisions thereof.
Executive shall be entitled to vacation time consistent with the Company’s policies. The date or
dates of such vacations shall be selected by Executive having reasonable regard to the business
needs of the Company.
2.4 Expenses. Pursuant to the Company’s customary policies in force at the time of
payment, Executive shall be promptly reimbursed, against presentation of vouchers or receipts, for
all authorized expenses properly and reasonably incurred by him on behalf of the Company in the
performance of his duties hereunder.
3. Employment Period. Executive’s employment under this Agreement shall terminate as
set forth in Section 4 hereof (the “Employment Period”). Notwithstanding such Employment
Period, Executive acknowledges that Executive’s employment is for an unspecified duration that
constitutes at-will employment, and that either the Company or Executive can terminate such
employment at any time, for any reason, with or without notice, subject to the consequences set
forth herein.
4. Severance Benefits.
4.1 Termination by the Company for Cause. (a) If the Company terminates Executive’s
employment for Cause, the Company shall have no obligation to Executive other than the payment of
Executive’s earned and unpaid Base Salary, vested accrued benefits under the Company’s
ERISA-governed plans and accrued but unreimbursed expenses, subject to the provisions of Section
6.11 (collectively, the “Accrued Obligations”), to the effective date of such termination.
(b) For purposes of this Agreement, the term “Cause” shall mean any of the following:
(i) Executive’s failure to comply with the employment policies of the Company or any affiliate
or a material breach of this Agreement, either of which is not cured to the reasonable satisfaction
of the Board within fifteen (15) days of written notice to the Executive of such failure to so
comply;
(ii) Executive’s commission of any material act of dishonesty, breach of trust or misconduct
in connection with performance of employment-related duties; and
(iii) Executive’s conviction of, or pleading guilty or nolo contendere to, any felony or to
any crime involving dishonesty, theft or unethical business conduct, or conduct which could impair
or injure the Company or its reputation.
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4.2 Permanent Disability; Death. If during the Employment Period, (i) Executive shall
become ill, mentally or physically disabled, or otherwise incapacitated so as to be unable
regularly to perform the duties of his position for a period in excess of 90 consecutive
days or more than 180 days in any consecutive 12 month period, or (ii) a qualified independent
physician determines that Executive is mentally or physically disabled so as to be unable to
regularly perform the duties of his position and such condition is expected to be of a permanent
duration (a “Permanent Disability”), then the Company shall have the right to terminate Executive’s
employment with the Company upon written notice to Executive. In the event the Company terminates
Executive’s employment as a result of his Permanent Disability or death, Executive or Executive’s
estate shall be entitled to the benefits that he would have been entitled to receive if Executive’s
employment had been terminated by the Company without Cause pursuant to Section 4.4 (subject to the
provisos and conditions set forth therein); provided, however, that the Company shall have no other
obligation to Executive or Executive’s estate pursuant to this Agreement in the event that
Executive’s employment with the Company is terminated by the Company pursuant to this Section 4.2.
4.3 Resignation by the Executive. Executive may voluntarily resign from his
employment with the Company, provided that Executive shall provide the Company with thirty
(30) days advance written notice (which notice requirement may be waived, in whole or in part, by
the Company in its sole discretion) of his intent to resign. If Executive so terminates his
employment with the Company, other than in accordance with Section 4.5, the Company shall have no
obligation other than the payment of the Accrued Obligations to the effective date of such
termination.
4.4 Termination by the Company Without Cause. Executive’s employment with the Company
may be terminated at any time by the Company without Cause. If the Company terminates Executive’s
employment without Cause, the Company shall have the following obligations to Executive (but
excluding any other obligation to Executive pursuant to this Agreement):
(a) payment of the Accrued Obligations;
(b) the continuation of his Base Salary (at the rate in effect at the time of such
termination), as severance, for a period of one year (the “Severance Period”), each payment
being a separate payment due on the same fixed schedule that the Company follows for its regular
payroll, subject to the provisions of Section 6.11; and
(c) if Executive timely elects to continue his health insurance pursuant to COBRA, the Company
shall pay that portion of the premium that it pays for active employees with similar coverage
during the Severance Period or, if earlier, until such time as Executive is eligible for comparable
coverage with a subsequent employer (and Executive shall promptly notify the Company if he becomes
eligible for comparable coverage), subject to the provisions of Section 6.11;
provided, however, that the continuation of such salary and benefits shall cease on the occurrence
of any circumstance or event that would constitute Cause under Section 4.1 of
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this Agreement
(including any breach of the restrictive covenants referenced and incorporated in Section 5 below
or any similar restrictive covenants to which Executive is bound).
4.5. Termination following a Change in Control. In the event that a transaction is
consummated that results in a Pre-IPO Sale of EBS Master or Post-IPO Change in Control, as such
terms are defined herein, and Executive’s employment is terminated by Executive for Good Reason
under this Section 4.5 within 24 months following the earlier to occur of the Pre-IPO Sale of EBS
Master or Post-IPO Change in Control, as applicable, Executive shall be entitled to receive the
same benefits as if his employment had been terminated by the Company without Cause under Section
4.4 (subject to the provisions and conditions set forth herein).
Executive may terminate his employment for Good Reason under this Section 4.5, if he provides
thirty (30) days written notice to the Company, which notice shall detail the specific basis for
such termination. The Company shall be given the opportunity to cure the basis for such termination
within such thirty (30) day period. For purpose of this Section 4.5, the term “Good Reason” means
any of the following:
(a) a material reduction in Executive’s Base Salary;
(b) a material diminution of Executive’s title, duties, responsibilities or reporting
relationships; or
(c) the relocation by more than 50 miles of Executive’s principal place of employment.
For purposes of this Section 4.5, “Pre-IPO Sale of EBS Master” means the first to occur of (i)
any sale (whether by merger, consolidation, recapitalization, reorganization, sale of securities,
sale of assets or otherwise) in one transaction or a series of related transactions to a person or
entity (other than General Atlantic LLC, Xxxxxxx & Xxxxxxxx LLC or any of their respective
affiliates or permitted transferees pursuant to the Fourth Amended and Restated Limited Liability
Agreement of EBS Master LLC (“EBS Master”), as amended (“GA Members” or “HF Members”
respectively)) that acquires 100% of the EBS Master units owned by the GA Members and the HF
Members, whether directly or through an acquisition of the GA Members and the HF Members, or (ii) a
sale of all or substantially all of the assets of EBS Master and its subsidiaries; provided,
however, that the events set forth in (i) or (ii) occur prior to the completion of the first
underwritten public offering of shares of capital stock of a successor-in-interest to EBS Master or
an entity that owns a majority of the outstanding units or other equity interests of EBS Master
(the “Public Company,” as applicable) pursuant to an effective registration statement (under the
Securities Act of 1933, and the rules and regulations promulgated thereunder, as they may be
amended from time to time (“Initial IPO”).
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For purposes of this Section 4.5, “Post-IPO Change in Control” means the first to occur of any of
the following events provided such events occur after the effectiveness of the Initial IPO:
(a) any person or entity, including a “group” as defined in Section 13(d)(3) of the Exchange
Act, other than the GA Member, the HF Members, the Public Company or a wholly-owned subsidiary
thereof or any employee benefit plan of the Public Company or any of its subsidiaries, acquired
Beneficial Ownership (which, including correlative terms, shall have the
meaning given such terms in Rule 13d-3 promulgated under the Exchange Act) of the Public
Company’s securities having 50% or more of the combined voting power of the then outstanding
securities of the Public Company that may be cast for the election of directors of the Public
Company (other than as a result of an issuance of securities initiated by the Public Company in the
ordinary course of business);
(b) as the result of, or in connection with, any cash tender or exchange offer, merger or
other business combination or any combination of the foregoing transactions, less than a majority
of the combined voting power of the then outstanding securities of the Public Company or any
successor company or entity entitled to vote generally in the election of the directors of the
Public Company or such other corporation or entity after such transaction are held in the aggregate
by the holders of the Public Company’s securities entitled to vote generally in the election of
directors of the Public Company immediately prior to such transaction;
(c) during any period of two (2) consecutive years, individuals who at the beginning of any
such period constitute the board of directors of the Public Company (the “Public Board”)
cease for any reason to constitute at least a majority thereof, unless the election, or the
nomination for election by the Public Company’s shareholders, of each director of the Public
Company first elected during such period was approved by a vote of at least two-thirds (2/3rds) of
the directors of the Public Company then still in office who were (i) directors of the Public
Company at the beginning of any such period, and (ii) not initially (a) appointed or elected to
office as result of either an actual or threatened election and/or proxy contest by or on behalf of
a person or entity other than the Public Board, or (b) designated by a person or entity who has
entered into an agreement with the Public Company to effect a transaction described in (a) or (b)
above or (d) or (e) below;
(d) the Public Company’s shareholders approve a complete liquidation or dissolution of the
Public Company; or
(e) the Public Company’s shareholders approve the sale or other disposition of all or
substantially all of the assets of the Public Company to any person or entity (other than a
transfer to a subsidiary of the Public Company).
Notwithstanding the foregoing, a Post-IPO Change in Control shall not be deemed to occur
solely because any person or entity (the “Subject Person”) acquired Beneficial Ownership of more
than fifty percent (50%) of the combined voting power of the then outstanding voting securities of
the Public Company as a result of the acquisition of
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voting securities of the Public Company by the
Public Company which, by reducing the number of voting securities of the Public Company then
outstanding, increases the proportional number of shares Beneficially Owned by the Subject Persons,
provided that if (1) the Subject Person becomes the Beneficial Owner of any new or additional
voting securities of the Public Company in a related transaction or (2) after such share
acquisition by the Public Company the Subject Person becomes the Beneficial Owner of any new or
additional voting securities of the Public Company which in either case increases the percentage of
the then outstanding voting securities of the Public Company Beneficially Owned by the Subject
Person, then a Post-IPO Change in Control shall be deemed to occur.
4.6 Release. Employee acknowledges that he must execute and not revoke a release of
claims in a form provided by the Company within the time period provided in the release in order to
receive the payments and benefits under this Section 4 resulting from Employee’s separation from
service. Provided that Employee complies with the foregoing sentence, the payments will begin to
be processed with the Company’s next payroll cycle after the appropriate revocation period has
elapsed and in no event later than the 60th day following Employee’s separation from service.
5. Restrictive Covenants.
5.1 Confidentiality. Executive understands and acknowledges that, during the course
of his employment with the Company and as a result of his having executed this Agreement, Executive
shall be and has been granted access to valuable information relating to the Company’s business
that provides the Company with a competitive advantage (or that could be used to the Company’s
disadvantage by a Competitive Business (as defined herein), which is not generally known by, nor
easily learned or determined by, persons outside the Company (collectively “Trade Secret and
Proprietary Information”). The term Trade Secret and Proprietary Information shall include,
but shall not be limited to the Company’s: (a) specifications, manuals, software in various stages
of development; (b) customer and prospect lists, and details of agreements and communications with
customers and prospects; (c) sales plans and projections, product pricing information,
acquisition, expansion, marketing, financial and other business information and existing and future
products and business plans; (d) sales proposals, demonstrations systems, sales material; (e)
research and development; (f) computer programs; (g) sources of supply; (h) identity of specialized
consultants and contractors and Trade Secret and Proprietary Information developed by them for the
Company; (i) purchasing, operating and other cost data; (j) special customer needs, cost and
pricing data; and (k) employee information (including, but not limited to, personnel, payroll,
compensation and benefit data and plans), including all such information recorded in manuals,
memoranda, projections, reports, minutes, plans, drawings, sketches, designs, formula books, data,
specifications, software programs and records, whether or not legended or otherwise identified as
Trade Secret and Proprietary Information, as well as such information that is the subject of
meetings and discussions and not recorded. Trade Secret and Proprietary Information shall not
include such information that Executive can demonstrate: (x) is generally available to the public
(other than as a result of a disclosure by Executive; (y) was disclosed to Executive by a third
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party under no obligation to keep such information confidential; or (z) was known by Executive
prior to, and not as a result of, Executive’s employment or anticipated employment with the
Company.
Executive agrees at all times, both during and after his employment with the Company, to hold
all of the Trade Secret and Proprietary Information in a fiduciary capacity for the benefit of the
Company and to safeguard all such Trade Secret and Proprietary Information. Executive also agrees
that he will not directly or indirectly disclose or use any such Trade Secret and Proprietary
Information to any third person or entity outside the Company, except as may be necessary in the
good faith performance of his duties for the Company. Executive further agrees that, in addition
to enforcing this restriction, the Company may have other rights and remedies under the common law
or applicable statutory laws relating to the protection of trade secrets. Notwithstanding anything
in this Agreement to the contrary, Executive understands that he may disclose the Trade Secret and
Proprietary Information to the
extent required by applicable laws or governmental regulations or judicial or regulatory process,
provided that Executive gives the Company prompt notice of any and all such requests for
disclosure so that it has ample opportunity to take all necessary or desired action, to avoid
disclosure.
5.2 Company Property. Executive acknowledges that: (a) all Trade Secret and
Proprietary Information; (b) computers, and computer-related hardware and software, cell phones,
beepers and any other equipment provided to him by the Company; and (c) all documents Executive
creates or receives in connection with his employment with the Company, belongs to the Company, and
not to him personally (collectively, “Company Property”). Such documents include, without
limitation and by way of non-exhaustive example only: papers, files, memoranda, notes,
correspondence, lists, e-mails, reports, records, data, research, proposals, specifications,
models, flow charts, schematics, tapes, printouts, designs, graphics, drawings, photographs,
abstracts, summaries, charts, graphs, notebooks, investor lists, customer/client lists, and all
other compilations of information, regardless of how such information may be recorded and whether
in printed form or on a computer or magnetic disk or in any other medium. Executive agrees to
return all Company Property (including all copies) to the Company immediately upon any termination
of his employment, and further agrees that, during and after his employment with the Company, he
will not, under any circumstances, without the Company’s specific written authorization in each
instance, directly or indirectly disclose Company Property or any information contained in Company
Property to anyone outside the Company, or otherwise use Company Property for any purpose other
than the advancement of the Company’s interests.
5.3 Unfair Competition. Executive acknowledges that the Company has a compelling
business interest in preventing unfair competition stemming from the intentional or inadvertent use
or disclosure of the Trade Secret and Proprietary Information and Company Property.
5.4 Investors, Other Third-Parties, and Goodwill. Executive acknowledges that all
third-parties he services or proposes to service while employed by
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the Company are doing business
with the Company and not him personally, and that, in the course of dealing with such
third-parties, the Company establishes goodwill with respect to each such third-party that is
created and maintained at the Company’s expense (“Third-Party Goodwill”). Executive also
acknowledges that, by virtue of his employment with the Company, he has gained or will gain
knowledge of the business needs of, and other information concerning, third-parties, and that he
would inevitably have to draw on such information were he to solicit or service any of the
third-parties on his own behalf or on behalf of a Competitive Business.
5.5 Intellectual Property and Inventions. Executive acknowledges that all
developments, including, without limitation, the creation of new products, conferences,
training/seminars, publications, programs, methods of organizing information, inventions,
discoveries, concepts, ideas, improvements, patents, trademarks, trade names, copyrights, trade
secrets, designs, works, reports, computer software, flow charts, diagrams, procedures, data,
documentation, and writings and applications thereof relating to the past, present, or future
business of the Company that Executive, alone or jointly with others, may have discovered,
conceived, created, made, developed, reduced to practice, or acquired during his employment with
the Company (collectively, “Developments”) are works made for hire and shall remain the
sole and exclusive property of the Company, and Executive hereby assigns to the Company all of
his rights, titles, and interest in and to all such Developments, if any. Executive agrees to
disclose to the Company promptly and fully all future Developments and, at any time upon request
and at the expense of the Company, to execute, acknowledge, and deliver to the Company all
instruments that the Company shall prepare, to give evidence, and to take any and all other actions
that are necessary or desirable in the reasonable opinion of the Company to enable the Company to
file and prosecute applications for, and to acquire, maintain, and enforce, all letters patent,
trademark registrations, or copyrights covering the Developments in all countries in which the same
are deemed necessary by the Company. All data, memoranda, notes, lists, drawings, records, files,
investor and client/customer lists, supplier lists, and other documentation (and all copies
thereof) made or compiled by Executive or made available to him concerning the Developments or
otherwise concerning the past, present, or planned business of the Company are the property of the
Company, and will be delivered to the Company immediately upon the termination of his employment
with the Company.
5.6 Covenant Not to Compete with the Company.
(a) Executive acknowledges that the business of the Company is national in scope, that its
products and services are marketed throughout the entire United States, that the Company competes
in nearly all of its business activities with other individuals or entities that are, or could be,
located in nearly any part of the United States and that the nature of Executive’s services,
position, and expertise are such that he is capable of competing with the Company from nearly any
location in the United States.
(b) Accordingly, in order to protect the Trade Secret and Proprietary Information and
Third-Party Goodwill, Executive acknowledges and agrees that during the term of his employment with
the Company and for a period of eighteen months after
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the date his employment with the
Company is terminated for any reason (the “Restricted Period”), he will not, without the
Company’s express written permission, directly or indirectly (including through the Internet), own,
control, manage, operate, participate in, be employed by, or act for or on behalf of, any
Competitive Business located anywhere within the geographic boundaries of the United States (or
outside of the United States to the extent that such Competitive Business services persons located
within the United States).
(c) For purposes of this Agreement “Competitive Business” shall mean: (i) any
enterprise, including any payor (including, without limitation, insurance companies, HMO’s,
pharmacy benefits management companies, and/or self-insured employer groups) engaged in
establishing electronic linkages between individual healthcare providers, patients, and/or payors
for the purpose of facilitating or conducting financial, administrative and clinical communication
and/or transactions; (ii) any enterprise engaged in the printing or electronic communication of
patient statements or other invoices for services rendered; and (iii) any enterprise engaged in any
other type of business in which the Company is also engaged, or plans to be engaged, so long as
Executive is directly involved in such business or planned business on behalf of the Company.
5.7 Non-Solicitation of Employees, Customers. In order to protect the Trade Secret
and Proprietary Information and Third-Party Goodwill, during the Restricted
Period, Executive will not, without the Company’s express written permission, directly or
indirectly:
(a) solicit, induce, hire, engage, or attempt to hire or engage any employee or independent
contractor of the Company, or in any other way interfere with the Company’s employment or
contractual relations with any of its employees or independent contractors, nor will Executive
solicit, induce, hire, engage or attempt to hire or engage any individual who was an employee of
the Company at any time during the one (1) year period immediately prior to the termination of
Executive’s employment with the Company;
(b) contact, call upon or solicit, on behalf of a Competitive Business, any existing or
prospective client, or customer of the Company who Executive serviced, or otherwise developed a
relationship with, as a result of his employment with the Company, nor will Executive attempt to
divert or take away from the Company the business of any such client or customer.
5.8 Remedies. Executive acknowledges and agrees that the restrictions contained in
this Section 5 are reasonably necessary to protect the legitimate business interests of the
Company, and that any violation of any of the restrictions will result in immediate and irreparable
injury to the Company for which monetary damages will not be an adequate remedy. Executive further
acknowledges and agrees that if any such restriction is violated, the Company will be entitled to
immediate relief enjoining such violation (including, without limitation, temporary and permanent
injunctions, a decree for specific performance, and an equitable accounting of earnings, profits,
and
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other benefits arising from such violation) in any court having jurisdiction over such claim,
without the necessity of showing any actual damage or posting any bond or furnishing any other
security, and that the specific enforcement of the provisions of this Section 5 will not diminish
Executive’s ability to earn a livelihood or create or impose upon Executive any undue hardship.
Executive also agrees that any request for such relief by the Company shall be in addition to, and
without prejudice to, any claim for monetary damages that the Company may elect to assert.
5.9 Extension of Restricted Period. The Restricted Period shall be extended by the
length of any period during which Executive is in breach of the terms of this Section 5.
5.10 Nondisparagement. Executive agrees that at no time during his employment by the
Company or thereafter, shall he make, or cause or assist any other person to make, any statement or
other communication to any third party which impugns or attacks, or is otherwise critical of, the
reputation, business or character of the Company or any of its directors, officers or employees.
6. Miscellaneous.
6.1 Representations and Covenants. In order to induce the Company to enter into this
Agreement, Executive makes the following representations and covenants to the Company and
acknowledges that the Company is relying upon such representations and covenants:
(a) No agreements or obligations exist to which Executive is a party or otherwise bound, in
writing or otherwise, that in any way interfere with, impede or preclude him from fulfilling all of
the terms and conditions of this Agreement. Executive will abide by any agreements that protect
proprietary information or any other information of another company while Executive is performing
his duties hereunder and after his employment has terminated.
(b) Executive, during his employment, shall use his best efforts to disclose to the Board and
the Chief Executive Officer of the Company in writing or by other effective method any bona fide
information known by him and not known to the Board and/or the Chief Executive Officer of the
Company that he reasonably believes would have any material negative impact on the Company.
6.2 Entire Agreement. This Agreement and the Trade Secret and Proprietary Information
Agreement (incorporated herein by reference) contain the entire understanding of the parties in
respect of their subject matter and supersede upon their effectiveness all other prior agreements
and understandings between the parties with respect to such subject matter.
6.3 Notices. Any notice necessary under this Agreement shall be addressed to the
General Counsel of the Company at its principal executive office and to the Executive at the
address appearing in the personnel records of Company for Executive or to either party at such
other address as either party hereto may hereafter
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designate in writing to the other. Any notice
shall be deemed effective upon receipt thereof by the addressee or two (2) days after such notice
has been mailed, return receipt requested, or sent by a nationally recognized overnight courier
service, whichever comes first.
6.4 Amendment; Waiver. This Agreement may not be amended, supplemented, canceled or
discharged, except by written instrument executed by the party against whom enforcement is sought.
No failure to exercise, and no delay in exercising, any right, power or privilege hereunder shall
operate as a waiver thereof.
6.5 Binding Effect; Assignment. The rights and obligations of this Agreement shall
bind and inure to the benefit of any successor of the Company by reorganization, merger or
consolidation, or any assignee of all or substantially all of the Company’s business and
properties. The Company may assign its rights and obligations under this Agreement to any of its
subsidiaries or affiliates without the consent of Executive. The Company will require any such
purchaser, successor or assignee to expressly assume 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
purchase, succession or assignment had taken place. Executive’s rights or obligations under this
Agreement may not be assigned by Executive, except that the rights specified in Section 4.2 shall
pass upon Executive’s death to Executive’s executor or administrator.
6.6 Headings. The headings contained in this Agreement are for reference purposes
only and shall not affect the meaning or interpretation of this Agreement.
6.7 Governing Law; Forum; This Agreement shall be construed in accordance with and
governed for all purposes by the laws and public policy (other than conflict of laws principles) of
the State of Tennessee applicable to contracts executed and to be wholly performed
within such State. Any proceeding arising out of or relating to this Agreement shall be
brought in the state courts or federal courts in the state of Tennessee and the parties each hereby
expressly submit to the personal jurisdiction and venue of such courts.
6.8 Further Assurances. Each of the parties agrees to execute, acknowledge, deliver
and perform, and cause to be executed, acknowledged, delivered and performed, at any time and from
time to time, as the case may be, all such further acts, deeds, assignments, transfers,
conveyances, powers of attorney and assurances as may be reasonably necessary to carry out the
provisions or intent of this Agreement.
6.9 Severability. The parties have carefully reviewed the provisions of this Agreement
and agree that they are fair and equitable. However, in light of the possibility of differing
interpretations of law and changes in circumstances, the parties agree that if any one or more of
the provisions of this Agreement shall be determined by a court of competent jurisdiction to be
invalid, void or unenforceable, the remainder of the provisions of this Agreement shall, to the
extent permitted by law, remain in full force and effect and shall in no way be affected, impaired
or invalidated.
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6.10 Withholding Taxes. All payments hereunder shall be subject to any and all
applicable federal, state, local and foreign withholding taxes.
6.11 Section 409A. It is intended that (1) each installment of the payments provided
under the Agreement is a separate “payment” for purposes of Section 409A of the Internal Revenue
Code of 1986, as amended (the “Code”) and (2) that the payments satisfy, to the greatest
extent possible, the exemptions from the application of Section 409A of the Code provided under
Treasury Regulations 1.409A-1(b)(4), 1.409A-1(b)(9)(iii), and 1.409A-1(b)(9)(v). Notwithstanding
anything to the contrary in the Agreement, if the Company determines (i) that on the date
Executive’s employment with the Company terminates or at such other times that the Company
determines to be relevant, the Executive is a “specified employee” (as such term is defined under
Treasury Regulation 1.409A-1(i)) of the Company and (ii) that any payments to be provided to
Executive pursuant to the Agreement are or may become subject to the additional tax under Section
409A(a)(1)(B) of the Code or any other taxes or penalties imposed under Section 409A of the Code if
provided at the time otherwise required under the Agreement, then such payments shall be delayed
until the date that is six months after the date of Executive’s “separation from service” (as such
term is defined under Treasury Regulation 1.409A-1(h)) with the Company, or, if earlier, the date
of Executive’s death. Any payments delayed pursuant to this Section 6.11 shall be made in lump sum
on the first day of the seventh month following Executive’s “separation from service” (as such term
is defined under Treasury Regulation 1.409A-1(h)), or, if earlier, the date of Executive’s death.
In addition, to the extent that any reimbursement, fringe benefit or other, similar plan or
arrangement in which Executive participates during the term of Executive’s employment under this
Agreement or thereafter provides for a “deferral of compensation” within the meaning of Section
409A of the Code, (i) the amount eligible for reimbursement or payment under such plan or
arrangement in one calendar year may not affect the amount eligible for reimbursement or payment in
any other calendar year (except that a plan providing medical or health benefits may impose a
generally applicable limit on the amount that may be reimbursed or paid), and (ii) subject to any
shorter time periods provided herein or the applicable plans or arrangements, any reimbursement or
payment of an expense under such plan or arrangement must be made on or before the last day of
the calendar year following the calendar year in which the expense was incurred.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year
first above written.
| EMDEON BUSINESS SERVICES, LLC | ||||||
| By: | /s/ Xxxxxx Xxxxxxx | |||||
| Name: | ||||||
| Title: | ||||||
| EXECUTIVE: | ||||||
| /s/ Xxxx Xxxxxx | ||||||
| Xxxx Xxxxxx | ||||||
12
