Stephen N. Kane-
THIS EMPLOYMENT AGREEMENT (the "Agreement") by and between InfoCure
Corporation, a Delaware corporation ("Company"), and Stephen N. Kahane
("Executive"), is hereby entered into as of the 24th day of July, 2000 (the
WHEREAS, Company is engaged in the business of providing practice
management software products and related services that address the needs of
health care providers to manage and communicate administrative, practice
management and clinical applications designed to meet the information
requirements of medical specialties and office-based health care practices in
the United States (the "Business"); and
WHEREAS, Executive desires to be employed by Company and Company
desires to employ and assure itself of the continued services of Executive on
the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises, terms,
covenants and conditions set forth herein and the performance of each, it is
hereby agreed as follows:
1. Employment and Duties.
A. Company shall employ Executive as an Executive Vice
President and Chief Strategy Officer during the term of his employment as set
forth in this Agreement and Executive hereby accepts such employment. Executive
shall take direction from the Chief Executive Officer or if there is none, the
President ("CEO") of the Company, and shall take direction from the Chairman of
the Board of Directors of the Company as the Chairman shall deem necessary from
time to time. The Executive shall not be required to maintain his principal
office other than in Newton, Massachusetts or within forty (40) miles thereof.
The parties acknowledge that it is currently the
intention of the Company to spin-off its "PracticeWorks" subsidiary by means of
a pro rata dividend of all of the Company's "interests" in PracticeWorks to the
stockholders of the Company (such transaction being hereinafter referred to as
Within sixty days of the effective date of the
Spin-Off, the Company shall cause the Executive to be nominated for and elected
to the Board of Directors of the Company as Vice Chairman.
B. The Executive shall devote approximately forty (40)
hours per week to the performance of his duties hereunder. Neither the foregoing
nor any other provision of this Agreement is intended or shall be construed as
preventing Executive from devoting his time and effort to charitable, community
activities and other business non-competitive to the Business, including but not
limited to as a board member or senior advisor, provided that such involvement
with such activities does not materially interfere with the performance of his
duties under this Agreement.
2. Compensation and Benefits.
A. Base Salary. During the Term (as defined below),
Company shall pay to Executive a base salary ("Base Salary") of One Hundred
Ninety Thousand Dollars ($190,000) per year, payable in arrears in accordance
with the Company's standard payroll practices for senior executives (but in no
event less frequently than in equal semi-monthly payments). During the Term, the
Base Salary shall be reviewed at least annually and shall be increased (but not
decreased) from time to time, but not less than annually, as determined by the
CEO and/or the Compensation Committee of the Board of Directors. Any increase in
Base Salary shall not limit or reduce any other obligation of the Company to the
Executive under this Agreement.
B. Annual Bonus. The Executive has earned a cash bonus
of $120,000 for the year ending December 31, 2000, and Executive hereby
acknowledges receipt of $60,000 of said cash bonus, the remaining $60,000 shall
be paid by the Company on September 15, 2001. For each calendar year thereafter,
under the Term of this Agreement, the Executive may be entitled to annual bonus
award as determined by sole discretion of the CEO and/or the Compensation
Committee of the Board of Directors.
C. Employee Benefits, Bonus and Incentive Compensation.
During the Term (as defined below), Executive shall be entitled to participate
in all Executive and general employee benefit programs and policies provided by
the Company, including, without limitation, deferred compensation plans;
equity-based compensation; severance; and medical, dental, accidental death,
life, travel, accident and short and long term disability insurance plans.
D. Vacation. Executive shall accrue five (5) weeks of
vacation during each calendar year during the Term of this Agreement (with such
vacation time pro-rated for 2000). Vacation time shall be taken at such time as
not to materially interfere with the Business of Company. Any unused vacation
time may be carried forward from year to year.
E. Business Expenses. The Executive shall be entitled to
be reimbursed promptly for reasonable business expenses incurred by him in
connection with his services hereunder in accordance with the Company's policies
and procedures for its senior executives.
F. Auto Allowance. Executive shall receive a $1,500/per
month automobile allowance from the Company, payable monthly.
G. Indemnification. Executive shall be indemnified and
held harmless by the Company to the greatest extent permitted under Delaware law
as the same now exists or may hereafter be amended (but, in the case of any such
amendment, only to the extent that such amendment permits the Company to provide
broader indemnification than was permitted prior to such amendment) and under
the Company's by-laws as such exist on the Effective Date, if Executive is or
was made, or is threatened to be made, a party to any pending, completed or
threatened action, suit, arbitration, alternative dispute resolution mechanism,
investigation, administrative hearing or any other proceeding whether civil,
criminal, administrative or investigative, and whether formal or informal, by
reason of the fact that Executive is or was, or had agreed to become, a
director, officer, employee, agent, or fiduciary of the Company or any other
entity which Executive is or was serving at the request of the Company
Such indemnification shall be against all expenses (including all reasonable
attorneys' fees (including any fees for separate counsel so chosen by the
Executive), retainers, court costs, transcripts, fees of experts, witness fees,
travel expenses, duplicating costs, printing and binding costs, telephone
charges, postage, delivery service fees, and all other reasonable disbursements
or expenses customarily required in connection with asserting or defending
claims) ("Expenses") and all claims, damages, liabilities and losses (including
judgments, fines, and liabilities under the Internal Revenue Code or the
Employee Retirement Income Security Act of 1974, as amended, for damages, excise
taxes or penalties; damages, fines or penalties arising out of violation of any
law related to the protection of the public health, welfare or the environment;
and amounts paid or to be paid in settlement) incurred or suffered by Executive
or to which Executive may become subject for any reason.
(i) Advancement of Expenses and Costs. All
Expenses incurred by or on behalf of Executive in defending or otherwise being
involved in a Proceeding shall be paid by Company in advance of the final
disposition of a Proceeding, including any appeal therefrom, within 30 days
after the receipt by the Company of a statement or statements from Executive
requesting such advance or advances from time to time. Such statement or
statements shall evidence the Expenses incurred by Executive in connecting
therewith, together with supporting invoices, receipts and other documentation.
(ii) Effect of Certain Proceedings. The
termination of any Proceeding by judgment, order, settlement or conviction, or
upon a plea of nolo contendere or its equivalent, except, in each case, to the
extent that the terms thereof expressly so provide, shall not, of itself (i)
adversely affect the rights of Executive to indemnification, or (ii) create a
presumption that Executive did not meet any particular standard of conduct or
have any particular belief or that a court has determined that indemnification
or contribution is not permitted by applicable law.
(iii) Other Rights to Indemnification. Executive's
rights of indemnification and advancement of Expenses provided by this Section
2G shall not be deemed exclusive of any other rights to which Executive may now
or in the future be entitled under applicable law, the certificate of
incorporation, by-laws, agreement, vote of stockholders, or resolution of the
Board, or other provisions of this Agreement or any other agreement, or
(iv) Representations. The Company represents and
warrants that this Section 2G does not conflict with or violate its certificate
of incorporation or by-laws, and agrees that it will not amend its certificate
of incorporation or by-laws in a manner that would limit the rights of Executive
(v) Survival of Indemnity. Notwithstanding
anything in this Agreement to the contrary, this Section 2.G shall survive any
termination of the relationship of Executive with the Company and shall be
binding on, and inure to the benefit of the successors and assigns of the
Company and the successors, assigns, heirs and personal representatives of
(vi) The Company agrees to maintain appropriate
Directors' and Officers' Liability Insurance.
H. Stock Option and Stock Grants.
(i) On August 21, 2000, the Company shall grant
to the Executive stock options for the purchase of 750,000 shares of the Common
Stock, $0.001 par value per share, of the Company ("Common Stock") at a per
share exercise price equal to the closing price per share of Common Stock as
reported on the Nasdaq National Market on August 21, 2000. Such options shall
(i) vest during a 36-month period, in 12 equal quarterly installments commencing
on the three-month anniversary of the Effective Date, provided, however, that
(a) the vesting of options to purchase 375,000 shares of Common Stock shall be
accelerated and become fully exerciseable on the first day after the date on
which the average closing price of the Common Stock for 20 consecutive trading
days, as reported on the Nasdaq National Market, is greater than or equal to
$8.88 per share (with the remaining unvested shares, if any, continuing to vest
and become exerciseable on their original, 36-month, vesting schedule) and (b)
the vesting of the balance of such options to purchase shares of Common Stock
shall be accelerated and become fully exerciseable on the first day after the
date on which the average closing price of the Common Stock for 20 consecutive
trading days, as reported on the Nasdaq National Market, is greater than or
equal to $13.32 per share, (ii) be on terms no less favorable to the Executive
than those provided to any other senior executive of the Company, and (iii)
otherwise be in the form attached hereto as Exhibit A.
(ii) On or about October 19, 2000, a proposal
shall be put before the Compensation Committee of the Board of Directors of the
Company ("Committee") to grant the Executive a one-time stock award of 35,000
shares of the Common Stock, $0.001 par value per share, of the Company ("Stock
Award"). The Stock Award is subject to Committee approval.
(iii) The treatment and/or conversion of the
Executive's stock options upon Spin-Off shall be on terms no less favorable to
the Executive than those provided to any other senior executive of the Company.
3. Term. The term of employment of Executive under this
Agreement shall be for a period of four (4) years and any extensions thereof
commencing on the Effective Date hereof and ending on the fourth (4th)
anniversary thereof, subject to earlier termination as provided in Section 4;
provided, however, that at the end of such four (4) year period and each
anniversary date thereafter, the term of this Agreement will automatically be
extended for an additional year unless, not later than six (6) months prior to
the end of such four (4) year period or one (1) year extension period, as the
case may be, the Company or the Executive shall have given notice that it or he
elects not to have the term extended. The term of this Agreement as extended and
defined by this section shall be referred to as the "Term."
4. Early Termination.
A. For Cause.
(i) Notwithstanding the foregoing, Company may
terminate the employment of Executive "for cause" (as hereinafter defined) at
any time upon written notice
effective immediately. For purposes of this Agreement, "Cause" shall mean that,
prior to any termination pursuant to this Section 4.A., Executive shall have
(1) An intentional act or acts of fraud,
embezzlement or theft constituting a felony and resulting or intended to result
directly or indirectly in gain or personal enrichment for Executive at the
expense of the Company; or
(2) The continued, repeated, intentional and
willful refusal to perform the duties associated with Executive's position with
the Company, which is not cured within thirty (30) days following written notice
For purposes of this Agreement, no act or failure to act on the part of
Executive shall be deemed "intentional" if it was due primarily to an error in
judgment or negligence, but shall be deemed "intentional" only if done or
omitted to be done by Executive not in good faith and without reasonable belief
that his action or omission was in the best interest of the Company.
Executive shall not be deemed to have been terminated for "Cause"
hereunder unless and until there shall have been delivered to Executive a copy
of a resolution duly adopted by the affirmative vote of not less than a majority
of the Board of Directors of the Company then in office at a meeting of the
Board called and held for such purpose, after reasonable notice to Executive and
an opportunity for Executive, together with his counsel (if Executive chooses to
have counsel present at such meeting), to be heard before the Board, finding
that, in the good faith opinion of the Board, Executive had committed an act
constituting "Cause" as herein defined and specifying the particulars thereof in
detail. Nothing herein will limit the right of Executive or his beneficiaries to
contest the validity or propriety of any such determination.
(ii) Upon termination of Executive's employment
for cause, Company shall have no further obligation to pay any compensation to
Executive for periods after the effective date of the termination for cause,
except for Base Salary which accrued as of the termination date. In addition,
the right to exercise any vested stock option shall terminate on the 180th day
following the effective date of the termination of employment for cause.
B. Change in Control. In the event of a Change in Control (as
hereinafter defined) of Company, and Executive elects, in his sole discretion,
to terminate his employment hereunder as of a date within twelve (12) months
after the Change in Control, Executive shall give Company two (2) weeks prior
written notice of such termination and Executive shall be entitled to receive,
and Company shall pay to the Executive, on the date of the termination of
employment, an amount equal to three (3) times Executive's then yearly Base
Salary. On such termination date, Executive shall immediately become fully
vested in all of Executive's options, restricted stock grants and/or other forms
of equity-based compensation, and his right to exercise any vested stock option
and/or other form of equity-based compensation shall terminate on the ten (10)
year anniversary following the effective date of the Executive's termination of
employment. For a period of two (2) years after the termination date, the
Company also shall maintain, at its sole expense, all medical and dental
policies and benefits provided to the Executive and his family.
The term "Change in Control" means:
(i) The acquisition by any person, entity or
"group" within the meaning of Sections 13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1934 ("34 Act") (excluding, for this purpose, Company, any of
subsidiaries, or any employee benefit plan of Company or any of its
subsidiaries) of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the 34 Act) of more than forty percent (40%) of either the
then outstanding shares of common stock of Company or of the combined voting
power of Company's then outstanding voting securities entitled to vote generally
in the election of directors;
(ii) Individuals who, as of the date hereof,
constitute the board of directors of Company ("Incumbent Board") cease for any
reason to constitute at least a majority of the board of directors, provided
that any individual becoming a director subsequent to the date hereof whose
election, or nomination for election by Company's shareholders, was approved by
a vote of at least a majority of the directors then comprising the Incumbent
Board shall be considered as though such individual is a member of the Incumbent
(iii) Approval of the shareholders of Company of a
merger, consolidation or other reorganization in each case, with respect to
which persons who were the shareholders of Company and options immediately prior
to such merger, consolidation or other reorganization, immediately thereafter,
do not own more than sixty percent (60%) of the combined voting power entitled
to vote generally in the election of directors of the merged, consolidated or
reorganized Company's then outstanding voting securities, or of the sale of all
or substantially all of the assets of Company; provided, however, in such event
the Change in Control will be deemed to have occurred immediately prior to the
merger, consolidation or other reorganization.
(iv) Gross-Up Payment. If any of the payments
made to Executive under this Section 4.B ("payments") will be subject to the tax
imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the
"Code") the ("Excise Tax"), (and/or any similar tax that may be imposed by
federal, state or local law), the Company shall pay to the Executive an
additional amount (the "gross-up payment") equal to the sum of (x) the Excise
Tax imposed on the payments, (y) the Excise Tax imposed on the gross-up payment,
and (z) the federal, state and local income taxes imposed upon the gross-up
payment. The gross-up payment shall be made within 45 days after the date of
termination. For purposes of determining whether any of the payments will be
subject to the Excise Tax and the amount of such Excise Tax, any other payments
or benefits received or to be received by the Executive in connection with a
Change in Control or the Executive's termination (whether pursuant to the terms
of this Agreement or any other plan, arrangement or agreement with the Company,
any person whose actions result in a Change in Control or any person affiliated
with the Company or such person) shall be treated as "parachute payments" within
the meaning of Section 280G(b)(2) of the Code, and all "excess parachute
payments" within the meaning of Section 280G(b)(1) shall be treated as subject
to the Excise Tax, unless in the opinion of tax counsel selected by the Company
and acceptable to the Executive, such other payments or benefits (in whole or in
part) do not constitute parachute payments, or such excess parachute payments
(in whole or in part) represent reasonable compensation for services actually
rendered within the meaning of Section 280G(b)(4) of the Code, or are otherwise
not subject to the Excise Tax. For purposes of determining the amount of the
gross-up payment, the Executive shall be deemed to pay federal, state and local
income taxes at the highest marginal rate of federal, state and local income
taxation in the calendar year in
which the gross-up payment is to be made in the state and locality of the
Executive's residence on the date of termination, net of the maximum reduction
in federal income taxes which could be obtained from deduction of any state and
local income taxes. In the event that the Excise Tax is subsequently determined
to be less than the amount used to calculate the gross-up payment, the Executive
shall repay to the Company at the time that the reduction in Excise Tax is
finally determined the portion of the gross-up payment attributable to such
reduction, plus interest on the amount of such repayment at the rate provided in
Section 7872(f)(2) of the Code. In the event that the Excise Tax is determined
to exceed the amount used to calculate the gross-up payment (including by reason
of any payment the existence or amount of which cannot be determined at the time
of the gross-up payment), the Company shall make an additional gross-up payment
in respect of such excess (plus any interest payable with respect to such
excess) at the time that the amount of such excess is finally determined.
C. Termination by Company Without Cause, by Executive
after Constructive Discharge, or Due to Executive's Death or Disability. In the
event (i) Company terminates the employment of the Executive, other than
pursuant to Section 4.A above, prior to the expiration of term of this Agreement
as set forth in Section 3. hereof, (ii) Executive terminates his employment
after a Constructive Discharge (as defined below), or (iii) Executive's
employment terminates due to his death or Total and Permanent Disability (as
defined below), Company shall provide to the Executive or any other assignee as
provided in Section 7 below, the same rights, payments and benefits he would
have received if there had been a Change of Control as set forth in Section 4.B
For purposes of this Agreement, "Constructive Discharge" shall mean any
of the events set forth below which are not cured within fifteen (15) days
following written notice thereof by Executive to Company:
(i) Any reduction in Base Salary;
(ii) A reduction in Executive's job function,
duties or responsibilities, or a similar change in Executive's reporting
(iii) A required relocation of Executive of more
than forty (40) miles from Executive's current job location;
(iv) Any material breach of any of the terms of
this Agreement by the Company; or
(v) Failure by the Company to effectuate the
Spin-Off on or before May 31, 2001.
For purposes of this Agreement, the term "Total and Permanent
Disability" shall mean the suffering by Executive of a Disability for a
continuous period in excess of one hundred eighty (180) days. A Total and
Permanent Disability shall be deemed to commence upon the expiration of such one
hundred eighty (180) day period.
(i) For purposes hereof, the terms "Disabled" or
"Disability" shall mean a mental or physical condition which renders Executive
unable or incompetent to carry out
the material job responsibilities, with or without reasonable accommodation,
which such Executive held or the material duties to which Executive was assigned
after the time the disability was incurred. A determination of disability shall
be made by a physician mutually agreed upon by the Company and Executive (which
agreement neither party shall unreasonably withhold); provided that if the
Executive and the Company cannot agree on a physician, the Executive and the
Company shall each select a physician and these two shall select a third
physician, whose determination as to disability shall be binding on all parties.
5. No Mitigation Obligation. The Company hereby acknowledges that
it will be difficult and may be impossible (i) for Executive to find reasonably
comparable employment following the date of termination and (ii) to measure the
amount of damages which Executive may suffer as a result of termination of
employment hereunder. Accordingly, the payment of the termination compensation
by the Company to Executive in accordance with the terms of this Agreement is
hereby acknowledged by the Company to be reasonable and will be liquidated
damages, and Executive will not be required to mitigate the amount of any
payment provided for in this Agreement by seeking other employment or otherwise,
nor will any profits, income, earnings or other benefits from any source
whatsoever create any mitigation, offset, reduction or any other obligation on
the part of Executive hereunder or otherwise.
6. Covenants by Executive.
A. Company Property.
(i) Executive upon the termination of
Executive's employment for any reason or, if earlier, upon the Company request
shall promptly return all "Property" which had been entrusted or made available
to Executive by the Company.
(ii) The term "Property" means all records,
files, memoranda, reports, price lists, customer lists, drawings, plans,
sketches, keys, codes, computer hardware and software and other property of any
kind or description prepared, used or possessed by Executive during Executive's
employment by the Company and, if applicable, any of its affiliates (and any
duplicates of any such property) together with any and all information, ideas,
concepts, discoveries, and inventions and the like conceived, made, developed or
acquired at any time by Executive individually or, with others during
Executive's employment which relate to the Company business, products or
B. Trade Secrets.
(i) Executive agrees that Executive will hold in
a fiduciary capacity for the benefit of the Company, and any of its affiliates,
and will not directly or indirectly use or disclose, any "Trade Secret" that
Executive may have acquired during the term of Executive's employment by the
Company or any of its affiliates for so long as such information remains a Trade
(ii) The term "Trade Secret" means information,
including, but not limited to, technical or nontechnical data, a formula, a
pattern, a compilation, a program, a device, a method, a technique, a drawing, a
process, financial data, financial plans, product plans, or a list of actual or
potential customers or suppliers that (a) derives economic value, actual or
potential, from not being generally known to, and not being generally readily
ascertainable by proper means by, other persons who can obtain economic value
from its disclosure or use and (b) is the subject of reasonable efforts by the
Company and any of its affiliates to maintain its secrecy.
C. Confidential Information.
(i) Executive while employed under this
Agreement and thereafter during the "Restricted Period" shall hold in a
fiduciary capacity for the benefit of the Company and any of its affiliates, and
shall not directly or indirectly use or disclose, any "Confidential Information"
that Executive may have acquired (whether or not developed or compiled by
Executive and whether or not Executive is authorized to have access to such
information) during the term of, and in the course of, or as a result of
Executive's employment by the Company or any of its affiliates.
(ii) The term "Confidential Information" means
any secret, confidential or proprietary information possessed by the Company or
any of its affiliates relating to their businesses, including, without
limitation, trade secrets, customer lists, details of client or consultant
contracts, current and anticipated customer requirements, pricing policies,
price lists, market studies, business plans, operational methods, marketing
plans or strategies, product development techniques or flaws, computer software
programs (including object code and source code), data and documentation data,
base technologies, systems, structures and architectures, inventions and ideas,
past current and planned research and development, compilations, devices,
methods, techniques, processes, financial information and data, business
acquisition plans and new personnel acquisition plans (not otherwise included in
the definition of a Trade Secret under this Agreement) that has not become
generally available to the public by the act of one who has the right to
disclose such information without violating any right of the Company or any of
its affiliates. Confidential Information may include, but not be limited to,
future business plans, licensing strategies, advertising campaigns, information
regarding customers, Executives and independent contractors and the terms and
conditions of this Agreement.
D. Restricted Period. The term "Restricted Period" as
used in the Agreement shall mean the twelve month period which starts on the
date Executive's employment terminates with the Company without regard to
whether such termination comes before or after the end of the Term.
E. Nonsolicitation of Customers or Employees.
(i) Executive during the Restricted Period shall
not, on Executive's own behalf or on behalf of any person, firm partnership,
association, corporation or business organization, entity or enterprise, call on
or solicit competing business of customers of the Company or any of its
affiliates with whom Executive within the twelve month period immediately
preceding the beginning of the Restricted Period had or made contact with in the
course of Executive's employment by the Company.
(ii) Executive during the Restricted Period shall
not, either directly or indirectly, call on, solicit or attempt to induce any
other officer, employee or independent
contractor of the Company or any of its affiliates with whom Executive had
contact, knowledge of, or association in the course of Executive's employment
with the Company or any of its affiliates as the case may be, during the twelve
month period immediately preceding the beginning of the Restricted Period, to
terminate employee's employment with the Company or any of its affiliates and
shall not assist any other person or entity in such a solicitation.
F. Noncompetition Obligation. Executive shall not during
the Restricted Period and within the States of California, Georgia, Indiana or
Massachusetts organize or form, or acquire a material interest in, or serve as a
member of the executive management team of, or provide consulting concerning the
executive management of, any business which competes directly or indirectly with
any business which the Company is engaged in or has plans to engage in, on the
date of this Agreement; provided, however, Executive's ownership of any interest
constituting not more than five percent of the outstanding debt or equity in a
corporation shall not be deemed a "material interest" in competitor if the
shares of such corporation are actively traded on a recognized stock exchange or
are traded on an over-the-counter market even though that corporation may be a
competitor of the Company. Executive acknowledges and agrees that the states
identified in this section are states in which Executive performs services for
the Company by being actively engaged as a member of the Company's executive
management team in the Company's operations in these states.
7. Assignment; Binding Effect. The rights and obligations of the
Company shall inure to the benefit of and shall be binding upon the successors
and assigns of the Company. The rights and obligations of Executive are not
assignable except that the right to receive all rights, payments and benefits
under this Agreement shall inure to the benefit of Executive's spouse, estate,
representatives, heirs, administrators, successors and/or assigns in the event
of the Executive's death (collectively, "third party beneficiaries").
8. Complete Agreement. This Agreement hereby supersedes any other
employment agreements or understandings, written or oral, between Company,
including its subsidiaries and affiliates, and Executive. This written Agreement
is the final, complete and exclusive statement and expression of the agreement
between Company, including its subsidiaries and affiliates, and Executive and of
all the terms of this Agreement, and it cannot be varied, contradicted or
supplemented by evidence of any prior or contemporaneous oral or written
agreements. This written Agreement may not be later modified except by a further
writing signed by a duly authorized officer of Company and Executive, and no
term of this Agreement may be waived except by writing signed by the party
waiving the benefit of such term.
9. Notice. Whenever any notice is required hereunder, it shall be
given in writing addressed as follows:
To Company: InfoCure Corporation
239 Ethan Allen Highway
Ridgefield, Connecticut 06877
Attention: Joseph M. Walsh
Copy to: Stephen L. Hicks
Vice President & General Counsel
Hemenway & Barnes
60 State Street
Copy to: Boston, Massachusetts 02109
Attention: Frederick J. Marx, Esq.
Notice shall be deemed given and effective three (3) days after the deposit in
the U.S. Mail of a writing addressed as above and sent first class mail,
certified, return receipt requested, or when actually received. Either party may
change the address for notice by notifying the other party of such change in
accordance with this Section 9.
10. Severability; Headings. If any portion of this Agreement is
held invalid or inoperative, the other portions of this Agreement shall be
deemed valid and operative and, so far as is reasonable and possible, effect
shall be given to the intent manifested by the portion held invalid or
inoperative. This Agreement shall be enforced separately and independently of
any other agreement involving the parties hereto. The Section headings herein
are for reference purposes only and are not intended in any way to describe,
interpret, define or limit the extent or intent of the Agreement or of any part
11. Governing Law. This Agreement shall in all respects be
construed according to the laws of the State of Connecticut, without regard to
conflict of law principles.
12. Counterparts. This Agreement may be executed simultaneously in
two (2) or more counterparts, each of which shall be deemed an original and all
of which together shall constitute, but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
By: /s/ Richard E. Perlman
Richard E. Perlman
/s/ Steven Kahane
Stephen N. Kahane
July 26, 2004
("VitalWorks") effective January 1, 2004 ("Agreement").
Dear Dr. Kahane:
On behalf of the compensation committee of VitalWorks, this will confirm our
agreement to modify and clarify the Agreement as follows:
1) Replace "December 31, 2004" in section 2 with "December 31, 2005" so that
the initial term of the Agreement shall expire on December 31, 2005.
2) Paragraph 3F of the Agreement is amended to clarify that any options
granted prior to August 21, 2000 shall terminate ten years from the date
such option was granted.
3) Options. To clarify the treatment of stock options granted through the
effective date of this letter agreement (including those granted pursuant
to Amended Exhibit 1 attached), and notwithstanding anything to the
contrary elsewhere in the Agreement, any other document, or in any stock
option plan, the following shall apply for all such options:
a) upon your termination for Cause (as defined in section 3A of the
Agreement), all unvested stock options are canceled;
b) upon your termination for Cause (as defined in section 3A of the
Agreement), all vested stock options shall have a exercise period,
and shall expire, ninety (90) days from date of termination; and
c) upon your voluntary termination, as described in section 3G of the
Agreement, all vested stock options will continue x) for ten (10)
years from date of grant for non performance based options including
those options granted on August 21, 2000 as adjusted, and y) for two
(2) years from date of termination for all performance based
d) As to the PERFORMANCE BASED STOCK OPTIONS ONLY (referred to in
Exhibit 1 as Option Grant #1 and Option Grant #3):
i) While you are employed, all vested options will continue for
ten (10) years from date of grant. Upon termination* all
vested options shall expire five (5) years from date of
termination of employment. Upon your death or Total and
Permanent Disability, as defined in section 3E of the
Agreement, all vested options shall expire two (2) years from
date of death/Total and Permanent Disability.
ii) For unvested options:
i. Unvested Option Grant #1 options shall vest upon Change in
Control, as defined in the Agreement;
ii. If the applicable goals are met before you are terminated* and
the stock options vest as a result thereof- the exercise
period for those options shall continue for five (5) years
from date of termination;
iii. Unvested stock options will not vest if termination* of your
employment occurs before or after the target measuring period
and/or Share Goal period, and the applicable goals for the
target measuring period and/or the Share Goal are not met;
iv. Upon your voluntary termination, as described in section 3G of
the Agreement, all unvested stock options shall be canceled
and unexercisable; and
v. Upon your death or Total and Permanent Disability, as defined
in section 3E of the Agreement, all unvested stock options
shall be canceled and unexercisable.
* for `non renewal', `good reason' and `termination without cause'- as set forth
in paragraph 3C (a) through (c) of the Agreement.
In the event of any conflict between the terms in subparagraphs 3a through c
above and those terms in subparagraph 3d above, the terms in subparagraphs 3a
through c above shall control and prevail. IN NO EVENT SHALL THE EXERCISE PERIOD
FOR ANY OPTION EXTEND BEYOND 10 YEARS FROM THE DATE OF GRANT OF SUCH OPTION.
4) Exhibit 1 to the Agreement is replaced by the Amended Exhibit 1 attached
to this letter.
5) You have submitted your resignation as Chief Strategy Officer of
VitalWorks effective September 1, 2004, and the Board of Directors has
appointed you president and chief executive officer of VitalWorks
effective September 1, 2004.
The terms of this letter will be effective July 26, 2004. All other terms and
conditions of the Agreement shall remain unchanged. Please confirm your consent
with the amended terms set forth above by signing the enclosed copy of this
letter and returning it to me. Please feel free to call me if you have any
Kenneth R. Adams
Chairman, Compensation Committee
Agreed to by:
Stephen N. Kahane
AMENDED EXHIBIT 1
TO EXECUTIVE'S EMPLOYMENT AGREEMENT ("EMPLOYMENT AGREEMENT")
VITALWORKS INC. ("COMPANY")
EFFECTIVE JULY 26, 2004
Executive: Stephen Kahane
Position: Vice Chairman, President and Chief Executive Officer
Auto Allowance: $18,000.00 annual; paid semi-monthly
Manager: Board of Directors
Optional Benefits: Health, dental, life, and disability
401(k) savings plan
Employee stock purchase plan
5 weeks vacation
Annual Salary: 2004: $300,000 effective July 26, 2004; paid semi-monthly;
EXECUTIVE INCENTIVE COMPENSATION PLAN:
Cash Bonus #1: 2004: $70,000 at 100% of Goals**;
Option Grant #1**- PERFORMANCE BASED STOCK OPTIONS: 115,000 shares
Option Grant Date: April 26, 2004
VITALWORKS STAND ALONE. VitalWorks Stand Alone shall mean the consolidated
Company excluding the AMICAS, Inc. subsidiary.
OPTION GRANT #1. You will receive option rights to purchase up to 115,000
shares of Company common stock priced at the market value per share of
the Company's common stock at the close of the NASDAQ National Market on
the Option Grant Date which was April 26, 2004. All option rights shall
be subject to the terms and conditions of the Company's 2000 Broad-Based
Stock Plan and the stock option certificate. All 115,000 option shares
shall vest and become exercisable on the sixth anniversary of the Option
Grant Date. However, subject to attainment of Goal(s), a certain
percentage of these shares shall vest and become exercisable effective
December 31, 2004 ("Option Acceleration").
CALCULATION OF % OF TOTAL BONUS $/OPTION ACCELERATION RELATING TO GOAL
ATTAINMENT. If the Goal attainment is between the Minimum and Mid-Point
or between the Mid-Point and Target, the % will be determined by straight
line interpolation. If the Goal attainment is at or below Minimum, the %
will be zero. If the Goal attainment is above Target, the % will be the
Target %, however, if income before income taxes (VitalWorks Stand Alone)
exceeds $xx, you will receive an Additional Bonus, limited to $118,000,
equal to 5% of the excess over $xx.
ACCOUNTING. Revenues for the 2004 fiscal year ("Incentive Period") shall be
determined in conformity with generally accepted accounting principles
("GAAP") by the Company and its independent auditors. Income before
income taxes for the Incentive Period shall exclude the effects on the
statements of operations, if any, of the following:
- Pending or threatened litigation, claims or assessments, related to a
period prior to March 6, 2001 including the Jones and ParkStone matters,
- Income/credit related to the 2000 Restructuring Plan accruals,
- Impairment in the value of intangible assets,
- Pending class action lawsuit for the class period of January
24, 2002 to October 23, 2002,
all determined in conformity with GAAP by the Company and its independent
auditors. For example, since GAAP requires the accrual of all costs and
expenses applicable to the Incentive Period, all employee incentives
(excluding stock-based incentives) are deductions in arriving at income
before income taxes.
B. ADDITIONAL COMPENSATION
Option Grant #2: You will receive option rights to purchase up to
250,000 shares of Company common stock priced at the market value
per share of the Company's common stock at the close of the NASDAQ
National Market on the grant date of option grant #2- July 26, 2004.
Vesting: Option shares shall vest and become exercisable in twelve
equal quarterly installments beginning three months from grant date
of option grant #2.
Incentive Stock Options ("ISOs"): Using the Company's 1996 Stock
Option Plan, to the extent permitted, option shares shall be ISOs.
Terms: Except as set forth below and in your Agreement, these option
shares shall terminate ten years from the grant date of Option Grant
#2 and, other than as described in your Agreement and herein, shall
be subject to the terms and conditions of the Company's 1996 Stock
Option Plan. Upon termination of employment for any reason including
death or Total and Permanent Disability, but excluding any
termination by the Company for Cause or your voluntary termination,
all unvested Option Grant #2 options shall immediately fully vest
and your right to exercise any and all vested Option Grant #2 stock
options shall not terminate until ten years from the date of grant.
Upon termination of employment by the Company for Cause or your
voluntary termination all unvested Option Grant #2 stock options
shall be canceled. Upon a Change in Control all unvested Option
Grant #2 stock options shall fully vest and the exercise period
shall terminate ten years from the date of grant.
C. ADDITIONAL PERFORMANCE BASED COMPENSATION
1. OPTION GRANT #3- PERFORMANCE BASED STOCK OPTIONS:
You will receive option rights to purchase up to 450,000 shares of
Company common stock priced at the market value per share of the
Company's common stock at the close of the NASDAQ National Market on
the Option Grant #3 Date which shall be July 26, 2004. All these
option rights shall be subject to the terms and conditions of the
Employment Agreement, and to the extent it does not conflict with
the Employment Agreement, the Company's 2000 Broad-Based Stock Plan
except for the vesting of such options upon Change in Control (as
defined in the Employment Agreement) which shall be governed by the
terms herein. All 450,000 option shares will vest and become
exercisable on the sixth anniversary of the Option Grant #3 Date.
However, subject to attainment of Share Goals (described below), the
vesting of a certain percentage of these shares will accelerate. If
there is a Change in Control (as defined in the Employment
Agreement) on or before June 30, 2005, 50% of the option shares will
immediately vest (225,000 option shares) and the remaining option
shares shall terminate. If there is a Change in Control after June
30, 2005, all of these option shares shall immediately vest. If you
are terminated pursuant to paragraph 3C of the Employment Agreement
in either 2005 or 2006, and the Share Goal for the year you were
terminated is thereafter achieved, the cash bonus set forth below
for the applicable Share Goal year only shall be due and unvested
Grant #3 option shares for the applicable Share Goal year only shall
vest as set forth below and you shall have five (5) years from the
date of your termination to exercise such options as to these vested
2. SHARE GOALS:-
2005: Subject to the attainment of an Average Stock Price
(defined as the average daily closing VitalWorks Inc. stock price on
the NASDAQ National Market for the applicable calendar year) of
$4.00 to $5.00 per share for the calendar year 2005, a percentage
(determined by straight
line interpolation) of 225,000 of the option shares will vest and
become exercisable effective December 31, 2005 (if acceleration of
all 225,000 shares is not earned in 2005, there will be a carry over
to 2006 of any remaining unvested option shares). Example: if the
Average Stock Price for 2005 equates to $4.50, vesting would
accelerate with respect to 50% or 112,500 option shares of the
option grant as of December 31, 2005; the balance of 112,500 option
shares would rollover to 2006.
2006: Subject to the attainment of an Average Stock Price of
$5.00 to $6.00 per share for the calendar year 2006, a percentage
(determined by straight line interpolation) of the sum of (i) the
option shares that remained unvested as of December 31, 2005 plus
(ii) an additional 225,0000 will vest and become exercisable
effective December 31, 2006. Example: if there are 337,500 option
shares remaining as described in the example above (225,000
+112,500), and if the Average Stock Price for 2006 equates to $5.50,
vesting will accelerate with respect to an additional 168,750 option
shares of the option grant as of December 31, 2006. There shall be
no carryover for 2007. Any remaining unvested option shares would
cliff vest on the sixth anniversary of the Option Grant #3 Date.
If necessary (e.g. stock split), the Share Goals shall be
adjusted in a manner similar to the terms of section 13 of the 2000
Broad-Based Stock Plan.
3. CASH BONUS #2:
2005: up to $250,000 may be earned subject to Share Goals for
2005 described above except there will be no rollover to the
following year nor cliff vesting. (e.g. if the Average Stock Price
for 2005 equates to $4.50, a $125,000 bonus will be paid)
2006: up to $250,000 may be earned subject to Share Goals for
2006 described above except there will be no cliff vesting.
All bonuses will be paid within thirty (30) days of the end of
the applicable calendar year.
D. OTHER TERMS
1 EFFECTIVENESS. This Amended Exhibit 1 is effective on the Effective Date
provided it is signed by the Executive and the Chairman of the
Compensation Committee of the Board of Directors. Except as may be set
forth in the Employment Agreement, this plan is not a contract of
employment and does not guarantee continued employment for any period.
None of the incentive amounts specified in this plan may be earned until
the end of the applicable time period. Earned incentive amounts are
payable only upon review and approval by the Compensation Committee. There
will be no incentive amounts earned for partial-year results upon the
voluntary or involuntary termination of the Executive's employment before
December 31, 2005, unless otherwise specified in the Employment Agreement
with the Company. This plan does not amend or supersede the Employment
2. COMPANY DISCRETION. Except with respect to the calculation and amount
of cash bonuses, the Option Grants, the Share Goals and the related Option
Accelerations and only to the extent it does not conflict with the
Employment Agreement, the Compensation Committee reserves the right to
revise this plan at any time as a result of its sole determination that a
significant change in circumstances or extraordinary or unusual event,
transaction (e.g., an acquisition), charge and/or credit has occurred or
was incurred, that was not anticipated or factored into this plan when
this plan was signed.
_______________________ ____ _______________________________ _____
Stephen Kahane Date Compensation Committee Chairman Date
409A AMENDMENT TO
EMPLOYMENT AGREEMENT OF STEPHEN N. KAHANE
WHEREAS, AMICAS, Inc. f/k/a VitalWorks, Inc. (the “Company”) and Stephen N. Kahane (“Executive”) entered into an employment agreement as of January 1, 2004 which was amended by agreement dated July 26, 2004 and further amended by agreement dated April 26, 2005 (collectively the “Agreement”);
Whereas, the Company and Executive desire to amend the Agreement to comply with Internal Revenue Code Section 409A; and
Whereas, all capitalized terms not otherwise defined herein shall have the meaning ascribed to them in the Agreement.
NOW THEREFORE, the Agreement is hereby amended as follows.
The first two sentences of Section 3B is amended in its entirety as follows:
“In the event of Change in Control (as hereinafter defined) of Company, and if, as of the date within twelve (12) months after the Change in Control either Company or Executive elects to terminate the employment of the Executive, the terminating party shall give the other party thirty (30) days prior written notice of such termination and thereafter the Company shall pay to the Executive in one lump sum payment an amount equal to twenty-four (24) months of the Executive’s then current Base Salary in exchange for the Executive’s execution and non-revocation of the Release (as hereinafter defined). The Executive acknowledges that he shall not have any right to receive any additional financial compensation other than the lump sum payment referenced in the previous sentence and the COBRA payments described herein.”
Section 3C(c)(w) of the Agreement is amended in its entirety as follows:
“(w) Company shall pay to the Executive, in one lump sum payment, an amount equal to the Executive’s then current Base Salary for the remainder of the Term plus eighteen (18) months of Executive’s then current Base Salary.”
Section 3D is amended by adding the following sentence at the end thereof:
“To the extent a severance payment under Section 3C would be exempt from Section 409A of the Code if the definition of Good Reason complies with Section 409A of the Code, the definition of Good Reason will be interpreted to comply with the definition of good reason under Section 409A of the Code and Treas. Reg. § 1.409A-1(n)(2).”
The following new Section 11 shall be added to the Agreement:
“Section 11 Compliance with Section 409A of the Code
A. Notwithstanding any other provisions set forth in this Agreement, no option may be extended to a date later than the earlier of: 1) the latest date upon which the option could have expired by its original terms under any circumstances or 2) the tenth anniversary of the original grant of the option or such other time period permitted under Treas. Reg. Section 1.409A-1(b)(5)(v)(C).
B. Notwithstanding any other provision of this Agreement to the contrary, if any amount (including imputed income) to be paid to Executive pursuant to this Agreement as a result of Executive’s termination of employment is “deferred compensation” subject to Section 409A of the Internal Revenue Code of 1986, as amended and any successor statute, regulation and guidance thereto (“Section 409A of the Code”), and if the Executive is a “Specified Employee” (as defined under Section 409A of the Code) as of the date of Executive’s termination of employment hereunder, then, to the extent necessary to avoid the imposition of excise taxes or other penalties under Section 409A of the Code, the payment of benefits, if any, scheduled to be paid by Company to Executive hereunder during the first 6-month period following the date of a termination of employment hereunder shall not be paid until the date which is the first business day after six (6) months have elapsed since the Executive’s termination of employment for any reason other than death. Any deferred compensation payments delayed in accordance with the terms of this Section 11B shall be paid in a lump sum after 6-months have elapsed since the Executive’s termination of employment. Any other payments will be made according to the schedule provided for herein.
C. If any of the benefits set forth in this Agreement are deferred compensation under Section 409A of the Code, any termination of employment triggering payment of such benefits must constitute a “separation from service” under Section 409A of the Code before distribution of such benefits can commence. For purposes of clarification, this paragraph shall not cause any forfeiture of benefits on the part of the Executive, but shall only act as a delay until such time as a “separation from service” occurs.
D. It is intended that each installment of the payments and benefits provided under this Agreement shall be treated as a separate “payment” for purposes of Section 409A of the Code. Neither the Company nor Executive shall have the right to accelerate or defer the delivery of any such payments or benefits except to the extent specifically permitted or required by Section 409A of the Code.
E. Any reimbursements or direct payment of Executive’s expenses subject to Section 409A of the Code shall be made no later than the end of the calendar year following the calendar year in which such expense is incurred by the Executive. Any reimbursement or right to direct payment of Executive’s expense in one calendar year shall not affect the amount that may be reimbursed or paid for in any other calendar year and a reimbursement or payment of Executive’s expense (or right thereto) may not be exchanged or liquidated for another benefit or payment.
F. Notwithstanding any other provision of this Agreement to the contrary, the Agreement shall be interpreted and at all times administered in a manner that avoids the
inclusion of compensation in income under Section 409A(a)(1) of the Code. Any provision inconsistent with Section 409A of the Code will be read out of the Agreement. For purposes of clarification, this Section 11 shall be a rule of construction and interpretation and nothing in this Section 11 shall cause a forfeiture of benefits on the part of the Executive.”
5. Except as specifically modified herein, the terms of the Agreement, and all terms and conditions of your employment with Company shall remain in full force and effect.
IN WITNESS WHEROF, each of the parties has caused this 409A Amendment to be executed as of December 31, 2008.
/s/ Stephen N. Kahane, MD
/s/ John. J. Sviokla
Stephen N. Kahane
FOURTH AMENDMENT TO
EMPLOYMENT AGREEMENT OF STEPHEN N. KAHANE
WHEREAS, AMICAS, Inc. f/k/a VitalWorks Inc. (the “Company”) and Stephen N. Kahane (“Executive”) entered into an employment agreement as of January 1, 2004, which was amended by agreement dated July 26, 2004 and further amended by agreements dated April 26, 2005 and December 31, 2008 (collectively the “Agreement”);
Whereas, the Company and Executive desire to further amend the Agreement; and
Whereas, all capitalized terms not otherwise defined herein shall have the meaning ascribed to them in the Agreement.
NOW THEREFORE, the Agreement is hereby amended as follows.
Section 3H is hereby deleted in its entirety and replaced with the following:
“H. The severance payments, COBRA payments and any obligation to pay a bonus (“Severance”) as may be set forth in Sections 3B and 3C above are subject to termination as follows:
(i) For a six (6) month period immediately following termination of the Executive’s employment with the Company, and not foregoing any other rights the Company may have, any obligation for the Company to pay Severance to Executive shall immediately terminate as of the date the Executive becomes employed by a Competitor, as defined in the Non-Compete and Non-Disclosure Agreement (Exhibit 1).
For a six (6) month period immediately following termination of the Executive’s employment with the Company, the Executive agrees to notify the Company in writing upon his acceptance of employment with a Competitor.”
2. Except as specifically modified herein, the terms of the Agreement, and all terms and conditions of your employment with Company shall remain in full force and effect.
IN WITNESS WHEROF, each of the parties has caused this Fourth Amendment to be executed as of February 10, 2009.
/s/ Stephen N. Kahane
/s/ John J. Sviokla
Stephen N. Kahane