EMPLOYMENT AGREEMENT
Exhibit
10.1
THIS
EMPLOYMENT AGREEMENT (hereinafter "this Agreement") is made effective as of
September 4, 2007, (the “Effective Date”), between Mediware Information Systems,
Inc., (hereinafter "the Company") and Xxxxxx X. Xxxx (hereinafter the
“Executive").
WHEREAS,
the Company desires to employ the Executive as its Chief Executive Officer
and
President, and the Executive desires to be so employed by the Company, on the
terms and conditions hereinafter set forth;
NOW,
THEREFORE, in consideration of the foregoing and of the respective covenants
and
agreements herein set forth, the Company and the Executive hereby agree as
follows:
1.
Employment.
The Company
hereby agrees to employ the Executive, and the Executive hereby agrees to serve
as the Chief Executive Officer and President of the Company. The Executive
agrees to perform such services customary to such office as shall from time
to
time be assigned to him by the Board of Directors. The Executive further agrees
to use his best efforts to promote the interests of the Company and to devote
his full energies to the business and affairs of the
Company. Executive will not perform any duties for any other
business without the prior written consent of the Chairman of the Board of
Directors, and may engage in charitable, civic or community activities, provided
that such duties or activities do not interfere with the proper performance
of
his duties under this Agreement. During the period of employment, if elected,
the Executive shall serve as director on the Company’s Board of Directors, and
the Company agrees (if approved by the independent members of the Board of
Directors) to nominate Executive to serve on the Company’s Board of Directors at
the first annual meeting after the Effective Date of this
Agreement. Additionally, if requested by the Board of Directors,
Executive will serve as a director on the boards of directors of the Company’s
affiliates. Executive shall also serve as a member of any board
committee to which he may be appointed. Executive shall not receive
any additional compensation for sitting on any such boards or
committees.
2.
Term of Employment. The employment hereunder shall commence on the
Effective Date and end on June 30, 2010 (the "'Expiration Date"), unless
terminated earlier pursuant to Paragraph 4 of this Agreement (the "Term of
Employment"). This Agreement shall automatically renew for successive terms
of
one (1) year (each a "Renewal Term") commencing on the first day immediately
following the Expiration Date, unless such renewal is objected to by either
the
Company or the Executive by giving prior written notice more than ninety (90)
days and less than one hundred and twenty (120) days prior to the scheduled
Expiration Date. In the event of such renewal, the last day of each successive
Renewal Term shall be deemed the Expiration Date.
3.
Compensation and Other Related Matters.
(a)
Salary. As compensation for services rendered hereunder, the Executive
shall receive an annual base salary of three hundred sixty thousand dollars
($360,000) (the “Annual Base Salary”), which salary shall be paid in accordance
with the Company's then prevailing payroll practices for its officers and shall
be subject to review annually by the Board of Directors.
(b)
Annual Cash Bonus.
|
(i)
|
For
the period from the Effective Date through June 30, 2008, the Executive
shall be eligible to receive an annual cash bonus of up to
($175,000*N)/366 where N equals the number of days from the Effective
Date
through June 30, 2008 (the “First Annual Bonus”). Eighty
percent (80%) of the First Annual Bonus shall be paid to the Executive
in
the first payroll period after the Company’s Annual Report on Form 10-K
for fiscal 2008 (“2008 Form 10-K”) is filed with the SEC, if Executive
serves as the Company’s Chief Executive Officer on the date the 2008 Form
10-K is filed and the 2008 Form 10-K is filed no later than December
31,
2008. Up to the remaining twenty percent (20%) of the First
Annual Bonus shall be payable to the Executive in the same payroll
period,
at the sole discretion of the Board of Directors, after taking into
account the Executive’s performance, provided that such payment shall be
made, if at all, no later than March 15,
2009.
|
|
(ii)
|
For
the period from July 1, 2008 through June 30, 2009, the Executive
shall be
eligible to receive an annual cash bonus of up to $175,000 (the “Second
Annual Bonus”). Twenty percent (20%) of the Second Annual Bonus
shall be paid to the Executive in the first payroll period after
the
Company’s Annual Report on Form 10-K for fiscal 2009 (“2009 Form 10-K”) is
filed with the SEC, if the Executive serves as the Company’s Chief
Executive Officer on the date the 2009 Form 10-K is filed and the
2009
Form 10-K is filed no later than December 31, 2009. Up to the
remaining eighty percent (80%) of the Second Annual Bonus shall be
payable
to the Executive in the same payroll period, at the sole discretion
of the
Board of Directors, after taking into account the Executive’s performance,
provided that such payment shall be made, if at all, no later than
March
15, 2010.
|
|
(iii)
|
For
the period from July 1, 2009 through June 30, 2010, the Executive
shall be
eligible to receive an annual cash bonus of up to $175,000 (the “Third
Annual Bonus”). Up to one hundred percent (100%) of the Third
Annual Bonus shall be payable to the Executive in the first payroll
period
after the Company’s Annual Report on Form 10-K for fiscal 2010 (“2010 Form
10-K”) is filed with the SEC, if Executive serves as the Company’s Chief
Executive Officer on the date the 2010 Form 10-K is filed and the
2010
Form 10-K is filed no later than December 31, 2010. The Third
Annual Bonus is payable at the sole discretion of the Board of Directors,
after taking into account the Executive’s performance, provided that such
payment shall be made, if at all, no later than March 15,
2011.
|
(c) Equity
Compensation.
|
(i)
|
Stock
Options. The Executive shall be granted
100,000 non-qualified stock options (the “Options”) to
purchase shares of the Company's Common Stock, par value $.10 per
share
(the “Stock”), under the Company’s 2003 Equity Incentive Plan (the “Plan”)
and the Company’s standard stock option agreement (the “Option
Agreement”). In addition to the terms set forth in the Plan and
Option Agreement, the Employer and the Executive agree as
follows:
|
|
a.
|
Vesting.
Subject to continued employment of the Executive, the Options shall
vest
and become exercisable as follows: Twenty-five thousand (25,000)
Options
shall become exercisable on each of the first, second, third and
fourth
anniversary of the Effective Date. In addition, upon an
acquisition or sale of the Company as defined in Paragraph 5(g) below,
all
remaining unvested Options shall become immediately
vested.
|
|
b.
|
Exercise.
The Options shall be exercisable at a price equal to Fair Market
Value (as
defined in the Plan) on the date of grant (the “Strike
Price”). The Options terminate five years after the
commencement of the Term of
Employment.
|
|
(ii)
|
Performance
Shares. The Executive shall be granted one hundred fifteen thousand
(115,000) restricted shares of Stock (the “Performance
Shares”) under the terms of the Company's Plan and an applicable
restricted stock agreement.
|
|
a.
|
11,250
of the Performance Shares (the “Initial Performance Shares”) shall vest
upon the filing of the 2008 Form 10-K with the SEC if the Board of
Directors determines that the performance metrics setting out the
vesting
requirements for the Initial Performance Shares are
achieved. The performance metrics for the Initial Performance
Shares shall be determined by the Compensation Committee of the Board
of
Directors and the Executive on or before September 30,
2007.
|
|
b.
|
3,750
of the Performance Shares shall vest upon the filing of the 2008
Form 10-K
with the SEC.
|
|
c.
|
37,500
of the Performance Shares (the “Second Performance Shares”) shall vest
upon the filing of the 2009 Form 10-K with the SEC if the Board of
Directors determines that the performance metrics setting out the
vesting
requirements for the Second Performance Shares are
achieved. The performance metrics for the Second Performance
Shares shall be determined by the Compensation Committee of the Board
of
Directors and the Executive on or before June 30,
2008.
|
|
d.
|
12,500
of the Performance Shares shall vest upon the filing of the 2009
Form 10-K
with the SEC.
|
|
e.
|
37,500
of the Performance Shares (the “Third Performance Shares”) shall vest upon
the filing of the 2010 Form 10-K with the SEC if the Board of Directors
determines that the performance metrics setting out the vesting
requirements for the Third Performance Shares are achieved. The
performance metrics for the Third Performance Shares shall be determined
by the Compensation Committee of the Board of Directors and the Executive
on or before June 30, 2009.
|
|
f.
|
12,500
of the Performance Shares shall vest upon the filing of the 2010
Form 10-K
with the SEC.
|
All
unvested Performance Shares shall terminate and be forfeit by the Executive
upon
the termination of Executive’s employment or if they do not vest pursuant to the
performance metrics set forth in Section 3(ii). Upon an acquisition
or sale of the Company as defined in Paragraph 5(g) below, any unvested (and
not
forfeited) Performance Shares shall terminate and the Executive shall be paid
cash pursuant to the following formula for each terminated share: Two
times the difference between the price per share of Stock paid by the acquirer
and the Strike Price per share of Stock.
(d)
Other Benefits. The fringe benefits, perquisites and other benefits of
employment, including four (4) weeks vacation each year, to be provided to
the
Executive shall be equivalent to such benefits and perquisites as are provided
to other senior executives of the Company as amended from time to
time.
(e)
Reimbursement. Subject to policies established from time to time by the
Company, the Company shall reimburse Executive for the reasonable expenses
incurred by him in connection with the performance of his duties hereunder,
including but not limited to, travel expenses and entertainment expenses, for
which the Executive shall account to the Company in a manner sufficient to
conform to Internal Revenue Service requirements.
(f) Relocation
Expenses. The Executive shall relocate to the Kansas City,
Missouri metropolitan area, within six months of the date
hereof. From the Effective Date, the Executive will be officed at the
Company’s Lenexa, Kansas offices during the term of this
Agreement. The Company will provide the Executive $80,000 to
reimburse the Executive for the Executive’s moving costs and expenses, payable
no later than March 15, 2008.
4.
Termination.
(a)
Disability. If, as a result of the incapacity of the Executive due to
physical or mental illness, the Executive is unable to perform substantially
and
continuously the duties assigned to him hereunder for a period of three (3)
consecutive months or for a non-consecutive period of nine (9) months during
the
Term of Employment, the Company may terminate his employment for "Disability"
upon thirty (30) days prior written notice to the Executive.
(b)
Death. The Executive's employment shall terminate immediately upon the
death of the Executive.
(c)
Cause. The Company shall be entitled to terminate the Executive's
employment for "Cause." Termination by the Company of the employment of the
Executive for "Cause" shall mean termination based upon (i) the failure by
the
Executive to follow directions communicated to him by the Chairman of the Board
of Directors; (ii) the willful engaging by the Executive in conduct which is
injurious to the Company, monetarily or otherwise; (iii) a conviction of, a
plea
of nolo contendere, a guilty plea or confession by the Executive to an
act of fraud, misappropriation or embezzlement or to a felony; (iv) the
Executive's habitual drunkenness or use of illegal substances; (v) a breach
by
the Executive of this Agreement; or (vi) an act of neglect or misconduct which
the Company deems in good faith to be good and sufficient
cause. Executive hereby represents and warrants that he has never
been convicted of an act of fraud, misappropriation, embezzlement or a felony,
and Executive further warrants that during the Term of this Agreement, he will
give the Company immediate notice of any charge against the Executive relating
to any of the foregoing.
(d)
Termination Without Cause. The Executive shall have the right to
terminate the Executive's employment without cause at any time upon ninety
(90)
days prior written notice. The Company shall have the right to
terminate the Executive’s employment without cause at any time without
notice. The giving of notice by either party pursuant to Section 2 to
prevent the renewal of this Agreement shall not be deemed a termination of
Executive’s employment without cause.
(e)
Good Reason. The Executive may terminate his employment with the Company
for "'Good Reason" after giving the company five business days notice and the
opportunity to cure. Termination by the Executive of his employment
for "Good Reason" shall mean termination based upon (i) a significant diminution
in the Executive's material duties and responsibilities without the Executive's
express written consent; (ii) a significant reduction by the Company in the
Executive's base salary; or (iii) an acquisition or sale of the Company by
or to
a third party as defined in Paragraph 5(g).
5.
Compensation Upon Termination or During Disability
(a)
Disability. During any period that the Executive fails to perform his
full-time duties with the Company for a three-month period as a result of
incapacity due to physical or mental illness (the "Disability Period"), the
Executive shall continue to receive his Annual Base Salary at the rate set
forth
in Paragraph 3(a) of this Agreement, less any compensation payable to the
Executive under the applicable disability insurance plan of the Company during
the Disability Period, until this Agreement is terminated pursuant to Paragraph
4(a) hereof. Thereafter, or in the event the Executive's employment shall be
terminated by reason of his death, the Executive's benefits shall be determined
under the Company's insurance and other compensation programs then in effect
in
accordance with the terms of such programs and the Company shall have no further
obligation to the Executive under this Agreement.
(b)
Death. In the event of the Executive's death, the Executive's beneficiary
shall be entitled to receive the Executive's Annual Base Salary at the rate
set
forth in Paragraph 3(a) of this Agreement until the date of his death.
Thereafter, the Company shall have no further obligation to the Executive or
the
Executive's beneficiary under this Agreement.
(c)
Cause. If the Executive's employment shall be terminated by the Company
for "Cause" as defined in Paragraph 4(c) of this Agreement, the Company shall
continue to pay the Executive his Annual Base Salary at the rate set forth
in
Paragraph 3(a) of this Agreement through the date of termination of the
Executive's employment. Thereafter, the Company shall have no further obligation
to the Executive under this Agreement.
(d)
Termination Without Cause. If the Company voluntarily terminates the
Executive's employment with the Company pursuant to Paragraph 4(d) of this
Agreement, the Company shall until the earlier of the twelve month anniversary
of the termination of employment or the commencement of Executive’s employment
at a successor employer, pay the Executive an amount equal to twelve months
of
the Executive's Annual Salary at the highest rate in effect during the period
of
the Executive's employment, payable in twelve equal monthly installments.
Additionally, until the earlier of the twelve month anniversary of the
termination of employment, or the commencement of the provision of health
benefits to the Executive by a successor employer, the Company will pay the
Executive’s COBRA premiums for the same health insurance coverage as immediately
before the date of the termination. Thereafter, the Executive acknowledges
that
the Company shall have no further obligation to the Executive under this
Agreement. Notwithstanding the foregoing, the Company shall only be
obligated to make the payments set forth in this section after the Executive
delivers to the Company an executed Release and Severance Agreement, which
shall
be substantially in the form of Employer’s standard Release and Severance
Agreement for all employees (a copy of the current form of release is attached
hereto) subject to any changes as required under applicable law to give effect
to its intent and purpose; and after delivery to the Company of a resignation
from all offices, directorships and fiduciary positions with the Company, its
affiliates and employee benefit plans.
(e)
Termination for Good Reason. If the Executive terminates his employment
for Good Reason with the Company pursuant to Paragraph 4(e) of this Agreement,
the Company shall until the earlier of the twelve month anniversary of the
termination of employment or the commencement of Executive’s employment at a
successor employer pay the Executive an amount equal to twelvemonths of the
Executive's Annual Base Salary at the highest rate in effect during the period
of the Executive's employment, payable in twelve equal monthly installments.
Additionally, until the earlier of the twelve month anniversary of the
termination of employment, or the commencement of the provision of health
benefits to the Executive by a successor employer, the Company will pay the
Executive’s COBRA premiums for the same health insurance coverage as immediately
before the date of the termination. Thereafter, the Executive acknowledges
that
the Company shall have no further obligation to the Executive under this
Agreement. Notwithstanding the foregoing, the Company shall only be
obligated to make the payments set forth in this section after the Executive
delivers to the Company an executed Release and Severance Agreement, which
shall
be substantially in the form of Employer’s standard Release and Severance
Agreement for all employees, with such changes therein or additions thereto
as
needed under then applicable law to give effect to its intent and purpose;
and
after delivery to the Company of a resignation from all offices, directorships
and fiduciary positions with the Company, its affiliates and employee benefit
plans.
(f)
Acquisition or Sale ofCompany. If a third party described in
Paragraph 5(g) of this Agreement terminates the Executive due to "an acquisition
or sale of the Company", as described in Paragraph 5(g) below, the Company
shall
pay the Executive an amount equal to twelve months of Executive's Annual Base
Salary at the rate in effect at the date of termination of the Executive's
employment during the period of the Executive's employment, payable in twelve
equal monthly installments. Until the earlier of the twelve month anniversary
of
the termination of employment, or the commencement of the provision of health
benefits to the Executive by a successor employer, the Company will pay the
Executive’s COBRA premiums for the same health insurance coverage as immediately
before the date of the termination. Thereafter, the Executive acknowledges
that
the Company shall have no further obligation to the Executive under this
Agreement. Notwithstanding the foregoing, the Company shall only be
obligated to make the payments set forth in this section after the Executive
delivers to the Company an executed Release and Severance Agreement, which
shall
be substantially in the form of Employer’s standard Release and Severance
Agreement for all employees, with such changes therein or additions thereto
as
needed under then applicable law to give effect to its intent and purpose;
and
after delivery to the Company of a resignation from all offices, directorships
and fiduciary positions with the Company, its affiliates and employee benefit
plans.
(g)
Definition. For purposes hereof, "an acquisition or sale of the Company"
to or by "a third party" shall mean the occurrence of any transaction or series
of transactions which within a six (6) month period result in (i) greater than
fifty percent (50%) of the then outstanding shares of Common Stock
of the Company (for cash, property including, without limitation, stock in
any
corporation or other third party legal entity, indebtedness or any combination
thereof) have been redeemed by the Company or purchased by a third party not
previously affiliated with the Company, or exchanged for shares in any other
corporation or other third party legal entity not previously affiliated with
the
Company, or any combination of such redemption, purchase or exchange, (ii)
greater than fifty percent (50%) in book value of the Company's gross assets
are
acquired by a third party not previously affiliated with the Company (for cash,
property including, without limitation, stock in any corporation whether or
not
unaffiliated with the Company, indebtedness of any person or any combination
thereof), or (iii) the Company is merged or consolidated with another private
or
public corporation or other third party legal entity and the former holders
of
shares of Common Stock of the Company own less than 25% of the voting power
of
the acquiring, resulting or surviving corporation or other third party legal
entity. For the purposes hereof a director or officer of the Company shall
be
considered "affiliated with the Company."
(h)
Termination Without Cause. If the Employee voluntarily resigns
his employment with the Company pursuant to Paragraph 4(d) of this Agreement,
the Company shall pay the Executive during the ninety (90) day notice
period (if the Executive remains employed during such period) an amount equal
to
three (3) months of the Executive's Annual Base Salary at highest rate in effect
during the period of the Executive's employment, in accordance with the
Company’s normal payroll practices, and shall provide health insurance for such
three-month period (if the Executive remains employed during such period).
After
the last of such payments or after the Executive’s employment ends, the
Executive acknowledges that the Company shall have no further obligation to
the
Executive under this Agreement.
6.
Confidentiality and Restrictive Covenants.
(a)
The
Executive acknowledges that:
(i)
the
business in which the Company is engaged is intensely competitive and his
employment by the Company will require that he have continual access to and
knowledge of confidential information of the Company, including, but not limited
to, the nature and scope of its products, the object and source code offered,
marketed or under development by the Company or under consideration by the
Company for development, acquisition, or marketing by the Company and the
documentation prepared or to be prepared for use by the Company (and the phrase
"by the Company" shall include other vendors, licensees or and resellers and
value-added resellers of the Company's products or proposed product) and the
Company's plans for creation, acquisition, improvement or disposition of
products or software, expansion plans, financial status and plans, products,
improvements, formulas, designs or styles, method of distribution, lists of
remarketing and value-added and other resellers customer lists and contact
lists, product development plans, rules and regulations, personnel information
and trade secrets of the Company, all of which are of vital importance to the
success of the Company's business, provided that Confidential Information will
not include information which has become publicly known otherwise than through
a
breach by Executive of the provisions of this Agreement (collectively,
"Confidential Information");
(ii) the
direct or indirect disclosure of any Confidential Information would place the
Company at a serious competitive disadvantage and would do serious damage,
financial and otherwise, to the Company's business;
(iii) by
his training, experience and expertise, the Executive's services to the Company
will be special and unique; and
(iv) if
the Executive leaves the Company's employ to work for a competitive business,
in
any capacity, it would cause the Company irreparable harm.
(b) Covenant
Against Disclosure. The Executive therefore covenants and agrees that all
Confidential Information relating to the business products and services of
the
Company, any subsidiary, affiliate, seller or reseller, value-added vendor
or
customer shall be and remain the sole property and confidential business
information of the Company, free of any rights of the Executive. The Executive
further agrees not to make any use of the confidential information except in
the
performance of his duties hereunder and not to disclose the information to
third
parties, without the prior written consent of the Company. The obligations
of
the Executive under this Paragraph 6 shall survive any termination of this
Agreement. The Executive agrees that, upon any termination of his employment
with the Company, all Confidential Information in his possession, directly
or
indirectly, that is in written or other tangible or readable form (together
with
all duplicates thereof) will forthwith be returned to the Company and will
not
be retained by the Executive or furnished to any third party, either by sample,
facsimile, film, audio or video cassette, electronic data, verbal communication
or any other means of communication.
(c) Non-competition.
The Executive agrees that, during the Term of Employment and for a period of
twelve months following the date of termination of the Executive's employment
with the Company, the Executive will not own, manage, or
be connected as an officer, employee or director with, or aid or
assist anyone else in the conduct of, any entity or business which competes
with
any business conducted by the Company or any of its subsidiaries or affiliates,
in the United States, Canada and the UK and any other area where such business
is being conducted on the date the Executive's employment is terminated
hereunder. Notwithstanding the foregoing the Executive's ownership of securities
of a public company engaged in competition with the Company not in excess of
five (5%) percent of any class of such securities shall not be considered a
breach of the covenants set forth in this Paragraph 6.
(d) Further
Covenant. Until the date which is one (1) year after the date of the
termination of the Executive's employment hereunder for any reason, the
Executive will not, directly or indirectly, take any of the following actions,
and, to the extent the Executive owns, manages, operates, controls, is employed
by or participates in the ownership, management, operation or control of, or
is
connected in any manner with, any business of the type and character engaged
in
and competitive with that conducted by the Company or any of its subsidiaries
or
affiliates during the period of the Executive's employment, the Executive
will not encourage or participate in any of the following actions on
behalf of such business:
(i)
persuade or attempt to persuade any
customer of the Company or any seller, reseller or value-added vendor of the
Company or of its products to cease doing business with the Company or any
of
its subsidiaries or affiliates, or to reduce theamount of business it does
with
the Company or any of its subsidiaries or affiliates;
(ii)
solicit for himself or any entity
the business of (A) any customer of the Company or any of its subsidiaries
or
affiliates, or (B) any seller, reseller or-value-added vendor of the Company,
or
of its products, or (C) solicit any business from a customer which was a
customer of the Company or any of its subsidiaries or affiliates within twelve
months prior to the termination of the Executive's employment; and
(iii)
persuade or attempt to persuade
any employee of the Company or any of itssubsidiaries or affiliates or any
individual who was an employee of the Company or any of its subsidiaries or
affiliates, at any time during the six-month period prior to the Executive's
termination of employment, to leave the employ of the Company or any of its
subsidiaries or affiliates.
7.
Intellectual Property. The Executive hereby agrees that any and all (i)
software, object code, source code, and documentation, (ii) any improvements,
inventions, discoveries, formulae, processes, methods, know-how, confidential
data, patents, trade secrets, (iii) Food and Drug Administrative ("FDA")
applications seeking approval by the FDA, information contained in the Forms
510-k of the FDA and approvals from FDA, and (iv) other proprietary information
made, developed or created by the Executive (whether at the request or
suggestion of the Company or otherwise, whether alone or in conjunction with
others, and whether during regular working hours of work or otherwise) during
the period of his employment with the Company, which may be directly or
indirectly useful in, or relate to, the business being carried out by the
Company or any of its subsidiaries or affiliates, shall be promptly and fully
disclosed by the Executive to the Board of Directors and shall be the Company's
exclusive property as against the Executive, and the Executive shall promptly
deliver to the Board of Directors of the Company all papers, drawings, models,
data and other material relating to any invention made, developed or created
by
him as aforesaid.
The
Executive shall, upon the Company's request and without any payment therefor,
execute any documents necessary or advisable in the opinion of the Company's
counsel to direct issuance of patents, copyrights and FDA applications or
approvals of the Company with respect to such inventions or work product or
improvements or enhancements as are to be the Company's exclusive property
as
against the Executive under this Paragraph 7 or to vest in the Company title
to
such inventions as against the Executive, the expense of securing any such
patent or copyright, to be borne by the Company.
8.
Breach by Employee. Both parties recognize that the services to be
rendered under this Agreement by the Executive are special, unique and
extraordinary in character, and that in the event of a breach by Employee of
the
terms and conditions of the Agreement to be performed by him, then the Company
shall be entitled, if it so elects, to institute and prosecute proceedings
in
any court of competent jurisdiction, either in law or in equity, to enforce
the
specific performance thereof by the Executive. Without limiting the generality
of the foregoing, the parties acknowledge that a breach by the Executive of
his
obligations under Paragraph 6 or 7 would cause the Company irreparable harm,
that no adequate remedy at law would be available in respect thereof and that
therefore the Company would be entitled to seek injunctive relief with respect
thereto.
9.
Arbitration. Without precluding acting to obtain specific performance
and/or injunctive relief pursuant to Paragraph 8 above, in the event of any
dispute between the parties hereto arising out of or relating to this Agreement
or the employment relationship, including, without limitation, any statutory
claims of discrimination, between the Company and the Executive (except any
dispute with respect to Paragraphs 6 and 7 hereof), such dispute shall be
settled by arbitration in the City of Kansas City, State of Kansas, in
accordance with the National Rules for the Resolution of Employment Disputes
then in effect of the American Arbitration Association. The parties hereto
agree
that the arbitral panel shall also be empowered to grant injunctive relief
to a
party, which may be included in any award. Judgment upon the award rendered,
including injunctive relief, may be entered in any court having jurisdiction
thereof. Notwithstanding anything herein to the contrary, if any dispute arises
between the parties under Paragraphs 6 or 7, neither the Executive nor the
Company shall be required to arbitrate such dispute or claim, but each party
shall have the right to institute judicial proceedings in any court of competent
jurisdiction with respect to such dispute or claim. If such judicial proceedings
are instituted, the parties agree that such proceedings shall not be stayed
or
delayed pending the outcome of any arbitration proceeding
hereunder.
10.
Conformance to Section 409A. Notwithstanding any provisions of
this Agreement to the contrary, in the event that the Company determines that
any provision of this Agreement may violate or otherwise not comply with Section
409A of the Internal Revenue Code of 1986, as amended (“Section 409A”), the
Company may, without the consent of the Executive: (i) adopt such amendments
to
this Agreement, including amendments with retroactive effect, that the Company
determines necessary or appropriate to preserve the intended treatment of this
Agreement or the benefits provided by this Agreement and/or (ii) take such
other
actions as the Company determines necessary or appropriate to comply with the
requirements of Section 409A.
11.
Miscellaneous.
(a)
Successors; Binding Agreement. This Agreement and the obligations of the
Company hereunder and all rights of the Executive hereunder shall inure to
the
benefit of the parties hereto and their respective heirs, personal
representatives, successors and assigns, provided, however, that the duties
of
the Executive hereunder are personal to the Executive and may not be delegated
or assigned by him.
(b)
Notice. All notices of termination and other communications provided for
in this Agreement shall be in writing and shall be deemed to have been duly
given when delivered by hand, delivered by an express delivery (one day
service), delivered by telefax and confirmed by express mail or one day express
delivery service, or mailed by United States registered mail, return receipt
requested, addressed as follows:
|
If
to the Company:
|
|
|
Mediware
Information Systems, Inc.
|
|
|
00000
Xxxx 00xx
Xxxxxx
|
|
|
Xxxxxx,
XX 00000
|
|
|
If
to the Executive:
|
|
|
Xxxxxx
Xxxx
|
|
|
Mediware
Information Systems, Inc.
|
|
|
|
00000
Xxxx 00xx
Xxxxxx
|
|
Xxxxxx,
XX 00000
|
or
to
such other address as either party may designate by notice to the other, which
notice shall be deemed to have been given upon receipt.
(c)
Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Kansas without regard to the conflict
of law rules thereof.
(d)
Waivers. The waiver of either party hereto of any right hereunder or of
any failure to perform or breach by the other party hereto shall not be deemed
a
waiver of any other right hereunder or of any other failure or breach by the
other party hereto, whether of the same or a similar nature or otherwise. No
waiver shall be deemed to have occurred unless set forth in writing executed
by
or on behalf of the waiving party. No such written waiver shall be deemed a
continuing waiver unless specifically stated therein, and each such waiver
shall
operate only as to the specific term or condition waived and shall not
constitute a waiver of such term or condition for the future or as to any act
other than that specifically waived.
(e)
Validity. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, which shall otherwise remain in full force and effect.
Moreover, if any one or more of the provisions contained in this Agreement
is
held to be excessively broad as to duration, scope or activity, such provisions
shall be construed by limiting and reducing them so as to be enforceable to
the
maximum extent compatible with applicable law.
(f)
Counterparts. This Agreement may be executed in several counterparts,
each of which shall be deemed an original, but all of which shall constitute
one
and the same instrument.
(g)
Entire Agreement. This Agreement (including the applicable stock option
and restricted stock agreements) sets forth the entire agreement and
understanding of the parties in respect of the subject matter contained herein,
and supersedes all prior agreements, promises, covenants, arrangements,
communications, representations or warranties, whether oral or written, by
any
officer, employee or representative of either party in respect of said subject
matter.
(i)
Headings Descriptive. The headings of the several paragraphs of this
Agreement are inserted for convenience only and shall not in any way affect
the
meaning or construction of any of this Agreement.
(j)
Capacity. The Executive represents and warrants that he is not a party to
any agreement that would prohibit him from entering into this Agreement or
performing fully his obligations hereunder.
(k) Indemnification. The
Executive, while serving as an officer and/or director of the Company, shall
have the benefits of the applicable indemnification provisions set forth in
the
charter and By-laws of the Company and of the applicable insurance protections
set forth in the Company’s applicable insurance policies.
IN
WITNESS WHEREOF, the Company and the Executive have executed this Agreement
as
of the date first written above.
|
EXECUTIVE:
|
MEDIWARE
INFORMATION SYSTEMS, INC:
|
||||
|
Xxxxxx
X. Xxxx
|
By:
|
||||
|
Name:
|
XXXXXXXX
XXXXXXX
|
||||
|
Title:
|
CHAIRMAN
|
||||
