MANAGEMENT SERVICES AGREEMENT
EXHIBIT 10.8
THIS MANAGEMENT SERVICES AGREEMENT (the “Agreement”) is entered into this 12th day of May,
2006, by and between VV III Management, LLC, a Delaware limited liability company (“Contractor”)
and OrthoLogic Corp., a Delaware corporation (the “Company”).
RECITALS
WHEREAS, the Company wishes to engage Contractor to make available the services of Xxxx X.
Xxxxxxxx, III (“Executive”) to serve as the Company’s Executive Chairman and principal executive
officer; and
WHEREAS, Contractor wishes to make available the services of Executive to the Company on the
terms and conditions set forth in this Agreement.
NOW, THEREFORE, the parties agree as follows:
AGREEMENT
1. Services. Pursuant to the terms of this Agreement, Contractor shall cause
Executive to serve, and Executive shall serve as the Company’s Executive Chairman and principal
executive officer with responsibility for corporate strategy, executive management, investor
relations, financial reporting and compliance. Contractor shall cause Executive to (i) devote the
time, attention, skill and efforts to the performance of such duties as are normal and customary to
the position of principal executive officer and as reasonably requested by the Company’s Board of
Directors (the “Board”); and (ii) comply with any and all rules of conduct established by the
Company and to perform any and all assigned duties in a manner that is acceptable to the Company.
2. Management Fee; Bonus; Reimbursement.
(a) Compensation. Company shall pay Contractor a management fee at the rate of
$200,000 per year (the “Management Fee”) payable on the first and fifteenth day of each calendar
month, retroactive to April 5, 2006.
(b) Bonuses. Executive shall be entitled to participate in a discretionary bonus plan
established for Executive from time to time by the Compensation Committee of the Board (the
“Compensation Committee”). The target bonus will be 40% of the annual Management Fee upon the
achievement by Executive of individual and corporate performance objectives established from time
to time by the Compensation Committee. Such cash bonus, if earned, will be payable to Contractor
annually on or before the first day of April immediately following the end of the calendar year for
which it is earned. Any bonus will be paid in such manner so that it is not subject to the
provisions of Section 409A of the Internal Revenue Code of 1986, as amended, and shall be
interpreted in a manner consistent with that intention.
(c) Reimbursement. In addition to the Management Fee provided above, the Company
shall reimburse Executive, in accordance with the policies and practices of the Company in effect
from time to time with respect to other members of senior management of the Company, for all
reasonable and necessary traveling expenses and other disbursements incurred by him for or on
behalf of the Company in connection with the performance of his duties to the Company upon
presentation by Executive to the Company of appropriate documentation therefor.
(d) Fringe Benefits. Except as otherwise provided in this Section 2, Executive will
not be entitled to participate in health, welfare, retirement or other similar benefit programs
made available from time to time to other executives and employees of the Company.
3. Termination.
(a) This Agreement may be terminated at any time by Contractor or the Company with or without
cause, notice or procedural formality. No individual or individuals associated with the Company,
other than the Compensation Committee acting pursuant to the powers granted to it by the Company,
has authority to make any agreement to the contrary, or any agreement for any specified period of
time. Any such agreement must be in writing and approved by the Compensation Committee to be
effective. The Company shall have no obligation to employ Executive after any such termination,
and upon any termination hereof, Contractor shall cause Executive to tender his resignation to the
Company.
(b) Upon the termination of this Agreement, neither Contractor, Executive nor Executive’s
beneficiaries or estate shall have any further rights under this Agreement or any claims against
the Company arising out of this Agreement, except that Contractor shall be entitled to receive
accrued and unpaid Management Fees which are then due and owing as of the date of termination and,
in the event of a termination by the Company without cause in connection with or following a Change
of Control, as defined below, Contractor shall be entitled to a continuation of the semi-monthly
payment of the Management Fee for a period of six months from the date of termination. For
purposes of this Agreement, “cause” shall include Executive’s neglect of duties, willful failure to
abide by instructions or policies from or set by the Board, commission of a felony or serious
misdemeanor offense or pleading guilty or nolo contendere to same, Contractor’s breach of this
Agreement or Contractor’s or Executive’s breach of any other material obligation to the Company.
(c) Upon the termination of this Agreement, Contractor shall, and shall cause Executive to
promptly deliver to the Company all equipment, documents and other company property in their
respective possession, custody or control.
(d) As used herein, the term “Change of Control” shall be defined as a change in ownership or
control of the Company effected through any of the following transactions:
(i) a statutory share exchange, merger, consolidation or reorganization approved by the
Company’s stockholders, unless securities representing more than 50% of the total combined voting
power of the voting securities of the successor corporation are immediately thereafter beneficially
owned, directly or indirectly, by the persons who beneficially owned the Company’s outstanding
voting securities immediately prior to such transaction;
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(ii) any stockholder approved transfer or other disposition of all or substantially all of the
Company’s assets (whether held directly or indirectly through one or more controlled subsidiaries)
except to or with a wholly-owned subsidiary of the Company); or
(iii) the acquisition, directly or indirectly by any person or related group of persons of
beneficial ownership (within the meaning of Rule 13d-3 of the Securities Exchange Act of 1934, as
amended), of securities possessing more than 50% of the total combined voting power of the
Company’s outstanding securities pursuant to transactions with the Company’s stockholders and not
solely by direct purchase from the Company.
4. Governing Law; Mediation. This Agreement is entered into in Arizona and shall in
all respects be interpreted, construed and governed by and in accordance with the laws of the State
of Arizona. The parties agree that any dispute between the parties relating to this Agreement
shall be subject to mediation according to the mediation rules of the American Arbitration
Association (the “AAA”) applicable to commercial disputes, such to be held at a mutually agreeable
office of the AAA in Phoenix, Arizona. Mediation shall be a condition precedent to litigation and
mediation shall in no way preclude either party from seeking and obtaining any prejudgment remedy
against the other party. By signing this Agreement, the parties submit themselves to the
jurisdiction of the courts of the State of Arizona, located in Maricopa County, for the purpose of
resolving any and all disputes arising out of this Agreement subject to the mediation procedures
set forth in this Section.
5. Whole Agreement. This Agreement embodies all of the representations, warranties,
covenants and agreements between the parties and no other representations, warranties, covenants,
understandings or agreements exist, provided that it is understood that Executive shall enter into
an Indemnification Agreement and Intellectual Property, Confidentiality and Non-Competition
Agreement with the Company.
6. Benefits of Agreement; Assignment. The terms and provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their respective
successors, assigns, representatives, heirs and estate, as applicable. Anything contained herein
to the contrary notwithstanding, this Agreement shall not be assignable by any party hereto without
the consent of the other party hereto; provided, however, that the Company may assign this
Agreement in connection with a sale of all or substantially all of its assets or a merger.
7. Amendment. This Agreement may not be amended orally but only by an instrument in
writing executed by the Company and Contractor.
SIGNATURE PAGE FOLLOWS
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| COMPANY: | CONTRACTOR: | |||||||||
| ORTHOLOGIC CORP. | VV III MANAGEMENT, LLC | |||||||||
By:
|
/s/ Xxxxxxx X. Xxxxxxx, Ph.D. | By: | /s/ Xxxx X. Xxxxxxxx, III | |||||||
Name:
|
Xxxxxxx X. Xxxxxxx, Ph.D. | Name: | Xxxx X. Xxxxxxxx, III | |||||||
Title:
|
Chair Compensation Committee | Title: | Executive Chairman | |||||||
Date:
|
May 12, 2006 | Date: | May 12, 2006 | |||||||
ACKNOWLEDGEMENT
Executive hereby acknowledges that he has read the foregoing Management Services Agreement and
acknowledges and agrees that Executive shall have no rights to employment or other benefits in
connection therewith, except as expressly provided therein. The Executive agrees that the
termination by either party of the Management Services Agreement shall constitute the tender by
Executive of his resignation from all positions held with the Company except, if applicable, as a
Director of the Company. The Executive further agrees that so long as Executive is serving as an
executive of the Company, Executive agrees that he shall: (i) devote the time, attention, skill
and efforts to the performance of such duties as are normal and customary for such position and as
reasonably requested by the Company’s Board of Directors; and (ii) use his best efforts to comply
with any and all rules of conduct established by the Company and to perform any and all assigned
duties in a manner that is acceptable to the Company.
EXECUTIVE:
Signature:
|
/s/ Xxxx X. Xxxxxxxx, III | |||
| Xxxx X. Xxxxxxxx, III | ||||
| Date: May 12, 2006 | ||||
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