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EXHIBIT 10.5
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into
as of the 4th day of November 1998, by and between MEDIRISK, INC., a Delaware
corporation (the "Company"), and XXXXXX X. XXXX III ("Employee").
W I T N E S S E T H:
WHEREAS, the Company desires to employ Employee, and Employee desires
to be employed by the Company, on the terms and conditions contained herein;
NOW, THEREFORE, in consideration of the compensation payable to
Employee by the Company pursuant to this Agreement, and the mutual promises,
covenants, representations and warranties contained herein, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto do agree as
follows:
1. EMPLOYMENT. Effective as of the date hereof (the "Effective
Date"), the Company employs Employee and Employee accepts employment with the
Company under the terms of this Agreement.
2. TERM. This Agreement shall begin on the Effective Date and
shall continue for an initial period of thirty-six (36) months from the
Effective Date (the "Initial Period"), subject to earlier termination by
Employee or the Company as hereinafter provided. This Agreement shall renew for
additional terms of twelve (12) months each, subject to earlier termination as
hereinafter provided, on the same terms and conditions (subject to mutually
agreeable modifications, if any).
3. COMPENSATION AND BENEFITS.
(A) Base Compensation. The Company shall pay Employee an
annual salary of One Hundred Forty Thousand and No/100 ($140,000.00) Dollars, as
may be adjusted as provided herein (the "Base Compensation"), payable according
to the pay periods of the Company as may be in effect from time to time. Such
payments shall be prorated for periods less than a full pay period. The Base
Compensation shall be subject to withholding for federal, state and local
payroll and all other taxes or withholdings applicable to Employee. Any
increases of the Base Compensation shall be at the discretion of the Company,
provided that any decreases to the then current Base Compensation shall require
the consent of Employee.
(B) Benefits. During the term of this Agreement, Employee
shall also be entitled to participate in the insurance and other fringe benefits
made available generally to similar employees of the Company, as such benefits
may be determined from time to time by the Company, provided that Employee shall
have at least three (3) weeks of paid vacation time. In
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addition, during the term of this Agreement, the Company will provide term life
insurance coverage of One Million Dollars ($1,000,000) on Employee's life with
the death benefit to be payable to Employee's estate or as otherwise directed in
writing by Employee. In addition, during the term of this Agreement and subject
to the Employee meeting the insurability requirements of the applicable carrier,
the Company will provide disability insurance coverage that, in the event of
Employee's disability, will pay benefits to Employee in an amount equal to
seventy percent (70%) of the total of (i) Employee's Base Compensation, as in
force from time to time, plus (ii) the average of Employee's total annual
incentive compensation for the then-preceding three years, or such lesser
percentage thereof as the Company may obtain without unreasonable expense.
(C) Bonuses. In addition to the Base Compensation payable
to Employee pursuant to Section 3(a) above, the Employee is entitled to an
annual bonus, with a target amount equal to twenty-five percent (25%) of
Employee's Base Compensation for such year based upon the Company's achievement
of one hundred percent (100%) of performance goals reasonably established by the
Compensation Committee of the Company's Board of Directors (the "Compensation
Committee"). The Company and Employee agree that Employee's performance bonus
for the year 1998 will be based upon the achievement of performance goals that
have already been established. The actual bonus to be paid will be increased or
decreased from the target based upon the Company's exceeding or failing to
achieve one hundred percent (100%) of the relevant goals pursuant to formulae
reasonably established by the Compensation Committee when establishing the
performance goals for the year.
(D) Expenses. The Company shall reimburse Employee for
any and all expenses reasonably incurred by Employee incident to the performance
of the Employee's duties hereunder upon submission to the Company of appropriate
documentation in accordance with the Company's policies and procedures.
(E) Stock Options. In addition to the benefits described
above, the Company granted Employee options to purchase 24,626 shares of Common
Stock of the Company ("Common Stock") on 10 September 1998. In addition to such
options, the Company will grant Employee options to purchase a minimum of
Fifteen Thousand (15,000) shares of Common Stock on each of the first and second
anniversaries of the date of this Agreement, such number of shares being
adjusted for any stock splits or stock dividends occurring after the date of
this Agreement; provided, however, that if in any year of the term of this
Agreement the Company grants Employee options to purchase more shares of Common
Stock than such minimum, then the amount in excess of such minimum may, in the
discretion of the Compensation Committee, be credited by the Company against the
minimum grant required hereunder for subsequent periods. Such options will have
an exercise price per share equal to the fair market value of a share of Common
Stock as reasonably determined by the Compensation Committee. Such options shall
vest at a rate of twenty percent (20%) per year, over five years, or immediately
upon the sale or other change of control of the Company.
4. DUTIES, EXTENT OF SERVICES. Employee is engaged as Senior Vice
President and Chief Financial Officer of the Company and shall perform such
duties and responsibilities as are typically incident to such positions, and
shall perform in a faithful and competent manner such
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additional duties as may be reasonably assigned from time to time by the
Company. Such duties shall be performed on a full-time basis for the Company at
the Company's offices in Atlanta, Georgia. Employee may be required, from time
to time, to perform his duties temporarily hereunder at such other place or
places as the Company shall reasonably designate or as the interests of the
Company may reasonably require, provided that such period does not exceed thirty
(30) consecutive days without Employee's consent and that during any such period
Employee is able to return to Atlanta, Georgia at the Company's expense for
weekends. Employee shall devote all of Employee's business time, attention,
knowledge, and skill solely to the business and interest of the Company, and the
Company shall be entitled to all the benefits, profits, and other issues arising
from, or incident to, all work, services, and advice of Employee.
5. TERMINATION. This Agreement may be terminated by the parties
in the manners specified below:
(A) Termination without Cause. Either the Company or the
Employee may terminate Employee's employment under this Agreement at any time
for any reason upon thirty (30) day's prior written notice to the other party.
(B) Termination for Cause. The Company may terminate this
Agreement on written notice at any time for "Cause." For purposes of this
Agreement, "Cause" shall mean: (i) Employee is convicted of, pleads guilty to,
or confesses to a felony or any crime involving any act of dishonesty, fraud,
misappropriation, embezzlement or moral turpitude, in which event the Company
may terminate this Agreement immediately; (ii) the intentional misconduct or
gross negligence by Employee in connection with the performance of Employee's
duties hereunder; (iii) the engaging by Employee in any fraudulent, disloyal or
unprofessional conduct which results in an injury to the Company or its
affiliates, monetarily or otherwise; (iv) Employee breaches any provisions of
Section 6 of this Agreement; (v) the failure by Employee to otherwise
substantially perform his duties with the Company (other than any such failure
resulting from the disability of Employee under Section 5(d)(i)) or the material
breach of any provision of this Agreement other than Section 6; or (vi) Employee
materially underperforms the objective performance goals reasonably established
by the Compensation Committee and agreed to by Employee, which agreement shall
not be unreasonably withheld, which underperformance is not the result of
general economic conditions that widely affect the industry in which the Company
conducts its business. In the event of any termination for Cause pursuant to the
provisions of (ii), (iii), (iv), (v) or (vi) of this subsection, the Company
shall give Employee written notice prior to such termination detailing the
specific acts, actions, failures, or events upon which the forecast termination
is based, and Employee shall have thirty (30) days after such written notice to
cease such actions or otherwise correct any such failure or breach. If Employee
does not cease such action or otherwise correct such failure or breach within
such thirty (30) day time period, or having once received such written notice
and ceased such actions or corrected such failure or breach, Employee at any
time thereafter again so acts, fails or breaches, the Company may terminate this
Agreement immediately.
(C) Termination for Good Reason. Employee may terminate
this Agreement on written notice at any time for "Good Reason." For purposes of
this Agreement, "Good
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Reason" shall mean: (i) without the express written consent of Employee, a
material diminution of his position, duties, responsibilities and status with
the Company as in effect as of the date of this Agreement, a material reduction
of Employee's reporting responsibilities, titles or offices as in effect on the
date of this Agreement, or the removal of Employee from, or failure to re-elect
Employee to, any position referred to in Section 4 of this Agreement, except in
connection with promotions to higher office or except in connection with the
termination of his employment for Cause; (ii) the reduction of Employee's Base
Compensation or a substantial change in the performance bonus structure
currently in effect (other than changes in goals from year to year); (iii) the
requirement that Employee relocate outside of the Atlanta, Georgia metropolitan
area; (iv) the reduction in the number of Employee's yearly vacation days; (v)
the material breach by the Company of any provision of this Agreement, which
breach continues uncorrected and uncured for fifteen (15) days after Employee
gives notice of such breach to the Company; (vi) the intentional interference by
the Company or any person directly or indirectly controlling or controlled by
the Company with the performance by Employee of his duties under this Agreement,
such that Employee is prevented or materially impaired from performing such
duties; or (vii) the termination of this Agreement by written notice from
Employee to the Company during the thirty (30) day period immediately following
the first anniversary of a Change of Control (as defined below).
(D) Involuntary Termination. The employment of Employee
under this Agreement shall be automatically terminated by the death or
disability of Employee as outlined below.
(I) Disability. The Company may terminate this
Agreement at the time Employee shall have been Disabled for a continuous period
of six (6) months during any continuous twelve (12) month period. For purposes
of this Paragraph 5(d)(i), the term "Disabled" shall mean Employee's inability
to perform the essential functions of his duties, with or without reasonable
accommodation. During Employee's six (6) month period of Disability, the Company
agrees to continue to pay Employee's Base Compensation (less regular
withholdings for payroll or other taxes and other required or proper items, and
less proceeds from all disability insurance policies or plans provided or made
available by the Company). In the event of a termination of Employee on account
of Disability, Employee shall receive the proceeds of the policy of disability
insurance provided by the Company in accordance with Section 3(b) above. In
addition, any provisions in the relevant stock option agreements to the contrary
notwithstanding, all outstanding stock options granted to Employee pursuant to a
Company stock option plan shall vest immediately upon termination pursuant to
this Section 5(d)(i).
(II) Death. In the event Employee shall die
during the term of this Agreement, this Agreement shall terminate and Employee's
estate shall receive the remainder of the Base Compensation set forth in Section
3(a) hereof accrued to the last day of the month in which death occurs. In
addition, any provisions in the relevant stock option agreements to the contrary
notwithstanding, all outstanding stock options granted to Employee pursuant to a
Company stock option plan shall vest immediately upon termination pursuant to
this Section 5(d)(ii).
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(E) Post-Termination Compensation. Except as provided in
Section 5(d) above, upon termination of this Agreement, Employer shall be
relieved of all of its obligations hereunder notwithstanding any period of time
remaining under the initial or any renewal term, subject to the following:
(I) Termination without Cause or for Good
Reason. Subject to Section 5(e)(iii), if the Company terminates Employee's
employment hereunder without Cause under Section 5(a) above or if Employee
terminates his employment hereunder for Good Reason under Section 5(c) above,
then Employee shall, after the effective date of such termination, as Employee's
sole and exclusive remedy, receive an amount equal to the annual Base
Compensation (as then in effect), payable without interest in equal amounts
according to the pay periods of the Company for a period of twelve (12) months
after the termination date. If the Company terminates Employee's employment
without Cause or if Employee terminates his employment for Good Reason, Employee
shall be under no duty to seek or accept other employment; but if he shall do
so, any compensation he shall receive therefrom shall not diminish the Company's
obligation to make payments required to Employee hereunder.
(II) Termination by the Company for Cause or by
Employee without Good Reason. If the Company terminates Employee's employment
hereunder with Cause under Section 5(b) above, then Employee shall, after the
effective date of such termination, receive the Base Compensation (as then in
effect) for a period of one (1) month after the termination date. If Employee
terminates his employment without Good Reason under Section 5(a) above, the
Company's obligation to pay Employee's Base Compensation shall terminate as of
the date of termination, and the Company shall pay Base Compensation accrued
through the date of termination.
(III) Termination following Change in Control. If
within twelve (12) months following a Change in Control (as defined below),
either (A) the Company terminates the employment of Employee hereunder without
Cause under Section 5(a) above or (B) Employee resigns from a declined
reassignment of a job that is not reasonably equivalent in responsibility or
compensation or that is not in the same geographic area, then, in lieu of any
other compensation that may be specified herein, Employee shall receive an
amount equal to two (2) multiplied by the sum of the annual Base Compensation
(as then in effect) plus an amount of annual bonus for the current year (the
annual bonus for the current year shall be equal in amount to the annual bonus
calculated in accordance with Section 3(c) as if the date of termination was the
last day of the current annual period, adjusted pro-rata for the portion of the
current annual period completed on the date of termination), payable by the
Company in a single lump-sum payment, to be paid not later than thirty (30) days
after termination. In the event such payment obligation arises, no compensation
received from other employment (or otherwise) shall reduce the obligation to
make the payment described in this paragraph.
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(F) Change in Control. "Change of Control" means a change
in control of the Company of a nature that would be required to be reported
(assuming such event has not been "previously reported") in response to Item
1(a) of a Current Report on Form 8-K pursuant to Section 13 or 15(d) of the
Exchange Act of 0000 (xxx "Xxxxxxxx Xxx"); provided that, without limitation, a
Change in Control shall also be deemed to have occurred at such time as:
(I) Any "person" within the meaning of Section
14(d) of the Exchange Act, other than the Company, a subsidiary, or any employee
benefit plan(s) sponsored by the Company or any Subsidiary, is or has become the
"beneficial owner," as defined in Rule 13d-3 under the Exchange Act, directly or
indirectly, of fifty percent (50%) or more of the combined voting power of the
outstanding securities of the Company ordinarily having the right to vote at the
election of directors; or
(II) Individuals who constitute the Board
immediately prior to any meeting of stockholders (the "Incumbent Board") have
ceased for any reason to constitute at least a majority thereof, provided that
any person becoming a director whose election, or nomination for election by the
Company's stockholders, was approved by a vote of at least three-quarters (3/4)
of the directors comprising the Incumbent Board (either by a specific vote or by
approval of the proxy statement of the Company in which such person is named as
a nominee for director without objection to such nomination) shall be, for
purposes of this Agreement, considered as though such person were a member of
the Incumbent Board; or
(III) Upon approval by the Company's stockholders
of a reorganization, merger, share exchange or consolidation, other than one
with respect to which those persons who were the beneficial owners, immediately
prior to such reorganization, merger, share exchange or consolidation, of
outstanding securities of the Company ordinarily having the right to vote in the
election of directors own, immediately after such transaction, more than fifty
percent (50%) of the outstanding securities of the resulting corporation
ordinarily having the right to vote in the election of directors; or
(IV) Upon approval by the Company's stockholders
of a complete liquidation and dissolution of the Company or the sale or other
disposition of all or substantially all of the assets of the Company other than
to a Subsidiary.
6. NONDISCLOSURE, CONFIDENTIALITY.
(A) Definitions. For purposes of this Section 6:
(I) "Trade Secrets" means all secret,
proprietary or Confidential Information regarding the Company or any of its
subsidiaries or the Company's or any of its subsidiaries' business or
activities, including any and all information not generally known to, or
ascertainable by, persons not employed by the Company or any of its
subsidiaries, the disclosure or knowledge of which would permit those persons to
derive actual or potential economic value therefrom or to cause economic or
financial harm to the Company or any of its subsidiaries. Trade Secrets shall
include, but not be limited to, information relating to the Company's or any of
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its subsidiaries' business plan, marketing techniques, financial statements and
projections, customer lists, Prospective Customer lists (including names,
addresses and telephone numbers), marketing research, marketing methods,
database products and systems, employee and independent contractor lists and
information about or records of clients or customers (including employees
thereof) compensation schedules, price list, training manuals, contracts,
agreements, specialized computer software, billing information, personnel
information and other information concerning the financial affairs, future plans
and management of the Company, its subsidiaries and their respective clients.
(II) "Confidential Information" means all
information regarding the Company and its subsidiaries, the Company's and its
subsidiaries' businesses, the Company's and its subsidiaries' activities or the
Company's and its subsidiaries' clients, customers or employees that is not
generally known to persons not employed by the Company or any of its
subsidiaries but that does not rise to the level of a Trade Secret and that is
not generally disclosed by Company practice or authority to persons not employed
by the Company or any of its subsidiaries.
(III) "Material Contact" means contact between
Employee and each customer or Prospective Customer (A) with whom Employee dealt;
(B) whose dealings with the Company or any of its subsidiaries were coordinated
or supervised by Employee; (c) about whom Employee obtained Trade Secrets or
Confidential Information in the ordinary course of business as a result of
Employee's association with the Company or any of its subsidiaries; or (D) who
receives products or services authorized by the Company or any of its
subsidiaries, the sale or provision of which results or resulted in
compensation, commissions or earnings for Employee within one year prior to the
date of Employee's termination.
(IV) "Person" means any individual, partnership,
corporation, trust, unincorporated organization, or any other business entity or
enterprise; provided, however, that the term "person" shall not include the
Company or any of its subsidiaries.
(V) "Prospective Customer" means any person to
whom the Company or any of its subsidiaries has sent or delivered a written
sales or servicing proposal or contract in connection with the business of the
Company or any of its subsidiaries.
(B) Acknowledgments. Employee agrees and acknowledges
that: (i) he is and will be in a position of confidence and trust with the
Company and he will have access to Trade Secrets and Confidential Information;
(ii) the nature and period of restrictions imposed by the covenants set forth in
this Section 6 are fair, reasonable and necessary to protect and preserve for
the Company the benefits of this Agreement and that such restrictions will not
prevent Employee from earning a livelihood; (iii) the Company would sustain
irreparable loss and damage if Employee were to breach any of such covenants;
and (iv) the covenants herein set forth are made as an inducement to and have
been relied upon by the Company in continuing to employ Employee, and Employee
represents and warrants for himself that he has not, prior to the date hereof,
disclosed to any Person or used or otherwise exploited for his own benefit or
for the benefit of any other Person any Trade Secrets or Confidential
Information.
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(C) Covenants. Having acknowledged the foregoing,
Employee hereby covenants to and agrees to the following:
(I) Covenant Against Disclosure of Trade Secrets
and Confidential Information. Employee hereby agrees to hold Trade Secrets and
Confidential Information in a fiduciary capacity for the benefit of the Company
and agrees that he shall not, directly or indirectly, during the term of
Employee's employment by the Company and for two years after the termination of
his employment for any reason whatsoever disclose to any Person or use or
otherwise exploit for Employee's own benefit or for the benefit of any other
Person any Trade Secrets or Confidential Information that were disclosed to
Employee or acquired by Employee while an Employee of the Company. Additionally,
Employee agrees that he will not, directly or indirectly, use or disclose to any
Person any Trade Secret at any time, as long as that information continues to be
a Trade Secret, even after the expiration of the above-referenced two-year
period, and Employee further agrees that this Section 6(c)(i) shall not limit in
any manner the protection of the Company's Trade Secrets otherwise afforded by
law.
(II) Covenant Against Diversion of Business.
Employee shall not, directly or indirectly, while he is in the Company's employ
and through the period ending one year after the termination of his employment
for any reason, accept, solicit, divert, appropriate, or attempt to accept,
solicit, divert, or appropriate, directly or by assisting others, any business
from any Person that was a customer or Prospective Customer with whom Employee
had Material Contact during his employment hereunder for purposes of providing
products or services that are competitive with those provided by the Company.
(III) Covenant Against Diversion of Employees.
Employee shall not, directly or indirectly while he is in the Company's employ
and through the period ending one year after the termination of his employment
for any reason initiate contact with the intention to recruit or hire, directly
or by assisting others, any employee of the Company or any of its affiliates;
provided, however, that Employee may hire or assist others in hiring any
employee of the Company whose employment with the Company at the time of such
hiring has been terminated by the Company.
(D) Consent to Injunction. Employee acknowledges that his
breach of any covenant set forth in this Section 6 will result in irreparable
injury to the Company and that the Company's remedies at law for such a breach
will be inadequate and extremely difficult to calculate or determine.
Accordingly, Employee agrees and consents that upon such breach or threatened
breach by Employee of any covenant set forth in this Section 6, the Company
shall, in addition to all other remedies available at law and in equity, be
entitled to a temporary restraining order, preliminary and interlocutory
injunction, and permanent injunctions to prevent or halt such a breach or
threatened breach by Employee of any covenant contained herein. Any violation of
the covenants contained in this Section 6 shall automatically toll and suspend
the period of such covenant for the amount of time the violation continues.
(E) Reformation. If any of the provisions of this
Agreement should ever be held to exceed the time or geographic limitations
permitted by applicable law in a final judgment
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by a court of competent jurisdiction, then such provisions shall be
automatically reformed to the maximum time or geographic limitations permitted
by applicable law.
(F) Severability. If any of the provisions of this
Agreement should in whole or in part be held invalid in a final judgment by a
court of competent jurisdiction, such invalidity shall not affect the validity
of the rest of this Agreement, the parties hereto intending that each provision
of this Agreement, including each subparagraph contained in Section 6(c), be
severable.
(G) Remedies Cumulative and Concurrent. The rights and
remedies of the Company as provided in this Agreement shall be cumulative and
may be pursued separately, successively or together against Employee at the sole
discretion of the Company, and may be exercised as often as occasion therefor
shall arise. The failure to exercise any right or remedy shall in no event be
construed as a waiver or release thereof.
7. CERTAIN ADDITIONAL PAYMENTS BY THE COMPANY.
(A) Anything in this Agreement to the contrary
notwithstanding and except as set forth below, in the event it shall be
determined that any payment or distribution by the Company to or for the benefit
of Employee (whether paid or payable or distributed or distributable pursuant to
the terms of this Agreement or otherwise, but determined without regard to any
additional payments required under this Section 7) (a "Payment") would be
subject to the excise tax imposed by Section 4999 of the Code or any interest or
penalties are incurred by Employee with respect to such excise tax (such excise
tax, together with any such interest and penalties, are hereinafter collectively
referred to as the "Excise Tax"), then Employee shall be entitled to receive an
additional payment (a "Gross-Up Payment") in an amount such that after payment
by Employee of all taxes (including any interest or penalties imposed with
respect to such taxes), including, without limitation, any income taxes (and any
interest and penalties imposed with respect thereto) and Excise Tax imposed upon
the Gross-Up Payment, Employee retains an amount of the Gross-Up Payment equal
to the Excise Tax imposed upon the Payments.
(B) Subject to the provisions of Section 7(c), all
determinations required to be made under this Section 7, including whether and
when a Gross-Up Payment is required and the amount of such Gross-Up Payment and
the assumptions to be utilized in arriving at such determination, shall be made
by KPMG Peat Marwick LLP or such other certified public accounting firm as may
be designated by Employee (the "Accounting Firm") which shall provide detailed
supporting calculations both to the Company and Employee within fifteen (15)
business days of the receipt of notice from Employee that there has been a
Payment, or such earlier time as is requested by the Company. In the event that
the Accounting Firm is serving as accountant or auditor for the individual,
entity or group effecting the Change in Control, Employee shall appoint another
nationally recognized accounting firm to make the determinations required
hereunder (which accounting firm shall then be referred to as the Accounting
Firm hereunder). All fees and expenses of the Accounting Firm shall be borne
solely by the Company. Any Gross-Up Payment, as determined pursuant to this
Section 7, shall be paid by the Company to Employee within five days of the
receipt of the Accounting Firm's determination. Any determination by the
Accounting Firm shall be binding upon the Company and Employee. It is possible
(due to the uncertainty in
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the application of Section 4999 of the Code at the time of the initial
determination by the Accounting Firm hereunder) that Gross-Up Payments will not
have been made by the Company which it is ultimately determined should have been
made ("Underpayment"), consistent with the calculations required to be made
hereunder. Consequently, in the event that the Company exhausts its remedies
pursuant to Section 7(c) and Employee thereafter is required to make a payment
of any Excise Tax, the Accounting Firm shall determine the amount of the
Underpayment that has occurred and any such Underpayment shall be promptly paid
by the Company to or for the benefit of Employee.
(C) Employee shall notify the Company in writing of any
claim by the Internal Revenue Service that, if successful, would require the
payment by the Company of the Gross-Up Payment. Such notification shall be given
as soon as practicable but no later than ten business days after Employee is
informed in writing of such claim and shall apprise the Company of the nature of
such claim and the date on which such claim is requested to be paid. Employee
shall not pay such claim prior to the expiration of the 30-day period following
the date on which it gives such notice to the Company (or such shorter period
ending on the date that any payment of taxes with respect to such claim is due).
If the Company notifies Employee in writing prior to the expiration of such
period that it desires to contest such claim, Employee shall:
(I) give the Company any information reasonably
requested by the Company relating to such claim,
(II) take such action in connection with
contesting such claim as the Company shall reasonably request in writing from
time to time, including, without limitation, accepting legal representation with
respect to such claim by an attorney reasonably selected by the Company,
(III) cooperate with the Company in good faith in
order effectively to contest such claim, and
(IV) permit the Company to participate in any
proceedings relating to such claim;
provided, however, that the Company shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest and shall indemnify and hold Employee harmless, on an
after-tax basis, for any Excise Tax or income tax (including interest and
penalties with respect thereto) imposed as a result of such representation and
payment of costs and expenses. Without limitation of the foregoing provisions of
this Section 7(c), the Company shall control all proceedings taken in connection
with such contest and, at its sole option, may pursue or forgo any and all
administrative appeals, proceedings, hearings and conferences with the taxing
authority in respect of such claim and may, at its sole option, either direct
Employee to pay the tax claimed and xxx for a refund or contest the claim in any
permissible manner, and Employee agrees to prosecute such contest to a
determination before any administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts, as the Company shall
determine; provided, however, that if the Company directs Employee to pay such
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claim and xxx for a refund, the Company shall advance the amount of such payment
to Employee, on an interest-free basis and shall indemnify and hold Employee
harmless, on an after-tax basis, from any Excise Tax or income tax (including
interest or penalties with respect thereto) imposed with respect to such advance
or with respect to any imputed income with respect to such advance; and further
provided that any extension of the statute of limitations relating to payment of
taxes for the taxable year of Employee with respect to which such contested
amount is claimed to be due is limited solely to such contested amount.
Furthermore, the Company's control of the contest shall be limited to issues
with respect to which a Gross-Up Payment would be payable hereunder and Employee
shall be entitled to settle or contest, as the case may be, any other issue
raised by the Internal Revenue Service or any other taxing authority.
(D) If, after the receipt by Employee of an amount
advanced by the Company pursuant to Section 7(c), Employee becomes entitled to
receive any refund with respect to such claim, Employee shall (subject to the
Company's complying with the requirements of Section 7(c)) promptly pay to the
Company the amount of such refund (together with any interest paid or credited
thereon after taxes applicable thereto). If, after the receipt by Employee of an
amount advanced by the Company pursuant to Section 7(c), a determination is made
that Employee shall not be entitled to any refund with respect to such claim and
the Company does not notify Employee in writing of its intent to contest such
denial of refund prior to the expiration of 30 days after such determination,
then such advance shall be forgiven and shall not be required to be repaid and
the amount of such advance shall offset, to the extent thereof, the amount of
Gross-Up Payment required to be paid.
8. SEVERABILITY. The parties hereto hereby expressly agree and
contract that it is not the intention of either party to violate any public
policy, or any statutory or common law, and that if any paragraph, sentence,
clause or combination of the same of this Agreement shall be in violation of the
laws of any state where applicable, such paragraph, sentence, clause or the
combination of the same shall be void in the jurisdictions where it is unlawful,
and the remainder thereof shall remain binding on the parties hereto. It is the
intention of the parties to make the covenants of this Agreement binding only to
the extent that they may be lawfully done under existing applicable laws. In the
event that any part of any term or covenant of this Agreement is determined by a
court of law or equity to be overly broad or otherwise unenforceable, the
parties hereto agree that such court shall be empowered to substitute, and it is
the intent of the parties hereto that such court substitute, a reasonably
judicially enforceable term or limitation in the place of such unenforceable
term or covenant, and that as so modified this Agreement shall be fully
enforceable.
9. ENTIRE AGREEMENT; MODIFICATION. This Agreement constitutes the
entire agreement between the parties and supersedes any and all prior
understandings or agreements, and any changes or additions hereto must be in
writing and signed by both parties.
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10. ASSIGNMENT.
(A) The rights and benefits of Employee under this
Agreement, other than accrued and unpaid amounts due under Section 3(a) hereof,
are personal to Employee and shall not be assignable.
(B) This Agreement may not be assigned by the Company
except to an affiliate of the Company; provided, however, that if the Company
shall merge or effect a consolidation or share exchange with or into, or sell or
otherwise transfer substantially all its assets to, another business entity, the
Company may assign its rights hereunder to that business entity without the
consent of the Employee provided that it causes such business entity to assume
the Company's obligations under this Agreement.
11. NOTICE. The references to the notice periods of certain "days"
contained in this Agreement shall mean calendar days. Any notice provided for in
this Agreement shall be delivered to Employee at the most recent address of
Employee listed in the Company's then current employment records. Notice to the
Company shall be delivered to the following address: Medirisk, Inc., Xxx
Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000, Attention: Chief Executive
Officer.
12. WAIVER. The waiver by any party to this Agreement of a breach
of any of the provisions contained herein shall not operate or be construed as a
waiver of any subsequent breach.
13. GOVERNING LAW. The parties agree that the laws of the State of
Georgia and any applicable federal law shall apply to this Agreement and the
interpretation thereof. The place of any mediation or litigation under this
Agreement shall be Atlanta, Georgia.
14. ATTORNEY'S FEES; INDEMNIFICATION. In the event of a dispute
arising under this Agreement, the prevailing party shall be entitled to all
reasonable attorneys' fees incurred in connection with such dispute. The Company
agrees, to the maximum extent permitted by law and the Bylaws and Certificate of
Incorporation of the Company, to defend and indemnify the Employee against and
to hold the Employee harmless from any and all claims, suits, losses,
liabilities, and expenses (including disputes arising under this Agreement and
including reasonable attorneys' fees and payment of reasonable expenses incurred
in defending against such claim or suit as such expenses are incurred) asserted
against the Employee for actions taken or omitted to be taken by the Employee in
good faith and within the scope of his responsibilities as an officer or
employee of the Company. If requested by the Employee, the Company shall advance
to the Employee, promptly following the Company's receipt of any such request,
any and all expenses for which indemnification is available hereunder, subject
to the requirements of applicable law and the Company's Bylaws and Certificate
of Incorporation.
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IN WITNESS WHEREOF, the Company and Employee have executed this
Agreement on the day and year first above written.
COMPANY:
MEDIRISK, INC.
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
XXXX X. XXXXXX
Chairman & Chief Executive Officer
EMPLOYEE:
/s/ Xxxxxx X. Xxxx, III
--------------------------------------------
XXXXXX X. XXXX III
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