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Exhibit (d)(1)
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of July 13, 2001, by and between
Sunquest Acquisition Corporation, a Pennsylvania corporation (the "Company"),
and Xxxx Xxxxxx ("Executive").
W I T N E S S E T H:
WHEREAS, Executive is currently employed by Sunquest Information
Systems, Inc., a Pennsylvania Corporation ("Sunquest");
WHEREAS, pursuant to the Agreement for Tender Offer and Merger,
dated as of June 24, 2001, by and among Misys plc, a public limited liability
company incorporated under the laws of England ("Parent"), Kirsty, Inc., a
Delaware corporation and an indirect wholly owned subsidiary of Parent ("U.S.
Parent"), Sunquest and the Company (the "Acquisition Agreement"), the Company
shall engage in a tender offer for all of the outstanding shares of Sunquest's
common stock (the "Tender Offer") and shall subsequently become merged with and
into Sunquest, with Sunquest as the surviving corporation (the "Merger");
WHEREAS, Parent desires to secure Executive's services on behalf of
the Company from and after the consummation of the Merger (the "Effective Time")
and to enter into this agreement setting forth the terms and conditions of
Executive's employment with the Company (the "Agreement");
WHEREAS, Executive desires to accept such employment on the terms
and conditions set forth in this Agreement;
WHEREAS, some of the terms and conditions set forth in this
Agreement have been summarized and/or further clarified in the letter, dated
July 13, 2001, received by Executive from the Chief Executive Officer of the
Parent's Healthcare Division (the "Cover Letter"); and
WHEREAS, during the course of his employment with the Company,
Executive has and will obtain confidential information concerning the business
and operations of Parent, the Company and their respective subsidiaries that
could be used to compete unfairly with Parent, the Company and/or their
respective subsidiaries and could be of great value to its and their
competitors.
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NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the Company and Executive hereby agree as follows:
1. Employment.
a. Agreement to Continue Employment. Upon the terms and subject to
the conditions of this Agreement and the Cover Letter and subject to the
occurrence of the Effective Time, the Company hereby agrees to continue to
employ Executive and Executive hereby accepts such continued employment with the
Company.
b. Term of Employment. The Company shall employ Executive pursuant
to the terms of this Agreement and the Cover Letter for the one year period
commencing at the Effective Time and ending on the first anniversary thereof
(the "Initial Term"), subject to the early termination provisions of Paragraph
6(a). The term will be extended for successive periods of three months each,
unless Executive or the Company provides a notice of non-renewal to the other
party at least 30 days prior to the expiration of the Initial Term or any
renewal term. The period during which Executive is employed pursuant to this
Agreement shall be referred to as the "Employment Period".
2. Position and Duties.
During the Employment Period, Executive shall serve as President and
General Manager of the Company and in such position or positions with the
Company and its subsidiaries as the Chief Executive Officer of the Company (the
"CEO") shall from time to time reasonably specify, subject to the approval of
the Board of Directors of Parent (the "Parent Board"). During the Employment
Period, Executive shall have the duties, responsibilities and obligations
customarily assigned to individuals serving in the position or positions in
which Executive serves hereunder. Executive shall devote his full business time
to the services required of him hereunder except for vacation time and
reasonable periods of absence due to sickness, personal injury or other
disability, and shall use his best efforts, judgment, skill and energy to
perform such services in a manner consonant with the duties of his positions and
to improve and advance the business and interests of the Company and its
subsidiaries.
3. Compensation.
a. Base Salary. During the Employment Period, the Company shall pay
Executive a base salary at the annual rate set forth in the Cover Letter. The
Board of Directors of the Company (the "Company Board") shall review Executive's
base salary on each May 31 during the Employment Period, and may, subject to the
approval of the Parent Board (which approval may be withheld in the discretion
of the Parent Board), adjust such base salary upwards, but not downwards, in
light of the base salaries then paid to other Executives of the Company and the
performance of Executive. Executive's
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annual base salary payable hereunder is referred to herein as "Base Salary". The
Company shall pay Executive his Base Salary in accordance with the Company's
regular payroll practices as in effect from time to time.
b. Incentive Compensation. During the Employment Period, Executive
may be eligible to receive an annual bonus under the Company's annual bonus
plan, based on performance criteria as determined by the CEO and approved by the
Parent Board. Executive's annual bonus (if any) for the fiscal years 2001 and
the abbreviated fiscal year ending May 31, 2002 shall be determined in
accordance with the Cover Letter. Additionally, Executive may be entitled to
participate in the Company's other existing and future annual and long term
incentive compensation programs as in effect from time to time at a level
commensurate with his position and duties with the Company and consistent with
the Company's then current policies and practices.
4. Retention Benefits.
a. Retention Bonus. Executive shall be entitled to receive a
retention bonus equal to his Base Salary as in effect at the Effective Time,
provided that Executive shall be entitled to such retention bonus only if
Executive remains in the employ of the Company until the last day of the Initial
Term (the "Retention Period"). Notwithstanding the foregoing sentence, Executive
shall be entitled to the retention bonus described in this Paragraph 4(a) even
if Executive's employment is terminated prior to the last day of the Retention
Period, but only if such termination of employment is not a (A) Termination for
Cause or (B) termination by Executive that is other than a Termination for Good
Reason. Any retention bonus payable to Executive under this Paragraph 4(a) shall
be paid as soon as practicable (but in no event later than 30 days) after the
Retention Period.
b. Options. As soon as practicable after the Effective Time,
Executive shall be granted an option (the "Option") to purchase Misys common
stock pursuant to the Misys Executive Share Options Plan, as amended. The Option
granted pursuant to this Paragraph 4(b) shall vest in three equal tranches on
each of the first, second and third anniversaries of the grant date, provided
that a tranche of the Option shall vest only if Executive is in the employ of
the Company on the applicable anniversary of the grant date. Notwithstanding the
foregoing sentence, the first tranche of the Option shall vest on the first
anniversary of the grant date even if Executive is not in the employ of the
Company on such date, but only if any such termination of Executive's employment
prior to such date is not a (A) Termination for Cause or (B) a termination by
Executive that is other than a Termination for Good Reason. Executive
acknowledges that, notwithstanding anything in this Agreement or the Cover
Letter to the contrary, the Option shall terminate and be cancelled if it is
determined that Executive had actual or constructive knowledge on June 25, 2001
(the date that the Tender Offer was announced) of any fact or circumstance that
would have given rise to a breach of any of the representative or warranties
contained in the Acquisition Agreement.
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5. Benefits, Perquisites and Expenses.
a. Benefits. During the Employment Period, Executive shall
participate in each pension and welfare benefit plan sponsored or maintained by
the Company to the extent Executive is eligible to participate in any such plan
under the generally applicable provisions thereof, including, without
limitation, each pension, profit sharing, retirement, deferred compensation or
savings, group life, medical, accident or disability insurance or similar plan
or program of the Company. Nothing herein shall limit the right of the Company
to amend or terminate any such plan in its sole discretion.
b. Perquisites. During the Employment Period, Executive shall
be entitled to sick leave and paid vacation in accordance with, and subject
to, in all respects the generally applicable provisions of the Company's
vacation and sick leave policies.
c. Business Expenses. During the Employment Period, the Company
shall pay or reimburse Executive for all reasonable expenses incurred or paid by
Executive in the performance of Executive's duties hereunder, upon presentation
of expense statements or vouchers and such other information as the Company may
require and in accordance with the generally applicable policies and procedures
of the Company.
6. Termination of Employment.
a. Early Termination of the Employment Period. Notwithstanding
Paragraph 1(b), the Employment Period shall end upon the earliest to occur of
(i) the date of Executive's death, (ii) 30 days following delivery by the
Company of written notice to Executive of a Termination due to Disability, (iii)
immediately upon delivery by the Company of written notice to Executive of a
Termination for Cause, (iv) three months following the date of delivery by the
Company of written notice to Executive of a Termination Without Cause, provided
that, subject to the continued payment to Executive of installments of his Base
Salary for the period ending three months following the date the Company
delivers such notice of termination to Executive, the Company may elect to
direct Executive to refrain from reporting to employment as of any earlier date
specified in such notice, (v) the date specified in any written notice delivered
by Executive to the Company of a Termination for Good Reason, which date shall
be at least 30 days after the delivery of such notice, or (vi) three months
following the date of delivery by Executive of written notice to the Company of
the Executive's resignation from employment, other than a Termination for Good
Reason.
b. Payments Upon Any Terminations. In the event of the termination
of Executive's employment pursuant to Paragraph 6, the Company shall pay to
Executive, within 30 days of the Termination Date, any Base Salary earned, but
unpaid, for services rendered to the Company on or prior to such date (other
than Base Salary deferred pursuant to Executive's election). In addition,
Executive shall be entitled to receive all
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vested benefits accrued and payable to Executive under the terms of or in
accordance with any plan, policy or program of the Company or its subsidiaries
(other than any severance plan, policy or program) that are payable at or
subsequent to the date of his termination without regard to the performance by
Executive of further services or the resolution of a contingency. Such vested
accrued benefits shall be payable in accordance with the terms of the plan,
policy or program under which such benefits have accrued, except as otherwise
expressly modified by this Agreement.
c. Additional Benefits Payable Upon Certain Terminations.
(I) Payments.
(A) In the event of a termination of Executive's employment pursuant to
Paragraph 6(a) due to a Termination Without Cause or a Termination for
Good Reason, (i) during the six month period beginning on the
Termination Date (the "Severance Period"), the Company shall continue
to (x) pay to Executive installments of his Base Salary (at the annual
rate in effect immediately prior to the Termination Date), in
accordance with the Company's regular payroll practices as then in
effect and (y) provide Executive with medical benefits, and (ii) with
respect to any incentive compensation award granted to Executive
pursuant to Paragraph 3(b), Executive shall be entitled to receive any
amounts that become payable with respect to such award in accordance
with and subject to the terms and conditions of the applicable
incentive plan or program, it being understood that there shall be no
duplication of payments under this Agreement and under such plan. The
Company may, in its sole discretion, extend the Severance Period beyond
the six month period beginning on the Termination Date, provided that
the Severance Period shall in no event extend beyond the first
anniversary of the Termination Date.
(B) In the event of the termination of Executive's employment pursuant to
Paragraph 6(a) due to a Termination due to Disability or as a result of
Executive's death, Executive shall be entitled to receive any amounts
that become payable in accordance with and subject to the terms and
conditions of the applicable incentive compensation plan or program, it
being understood that there shall be no duplication of payments under
this Agreement and under such plan.
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(II) Limitations. Notwithstanding the provisions of Paragraph
6(c)(I), if Executive materially breaches any of the provisions of
any of Paragraph 7, Executive shall forfeit all rights to receive,
and the Company shall be relieved of all obligations to pay, any and
all amounts then remaining to be paid to Executive pursuant to
Paragraph 6(c)(I).
d. Definitions. For purposes of Paragraphs 6 and 7, the
following capitalized terms have the following meanings:
"Termination Date" means the effective date of any early termination
of the Employment Period pursuant to Paragraph 6(a), it being understood
that in the event of a Termination Without Cause, the effective date of
such termination shall be the three month anniversary of the date the
Company delivers notice of such termination to Executive.
"Termination for Cause" means a termination of Executive's
employment by the Company due to (a) Executive's conviction of a felony or
the entering by Executive of a plea of nolo contendere to a felony, (b)
Executive's gross negligence, dishonesty (other than of a de minimis
nature), willful malfeasance or substantial misconduct in connection with
his employment with the Company, (c) a substantial or continual refusal by
Executive to perform the duties, responsibilities or obligations
reasonably assigned to him by the Company or (d) a material breach by
Executive of any covenant or obligation in any written agreement with the
Company or any of its subsidiaries, including any breach of any of the
provisions of Paragraph 7 hereof. Notwithstanding the foregoing, a
termination shall not be treated as a Termination for Cause unless the
Company shall have delivered a written notice to Executive stating that it
intends to terminate his employment for Cause and specifying the factual
basis for such termination, and the event or events that form the basis
for the notice, if capable of being cured, shall not have been cured
within 10 days of the receipt of such notice.
"Termination due to Disability" means a termination of Executive's
employment by the Company because Executive has been incapable of
substantially fulfilling the positions, duties, responsibilities and
obligations of his employment because of physical, mental or emotional
incapacity resulting from injury, sickness or disease for a period of at
least six months in any twelve month period. Any question as to the
existence, extent or potentiality of Executive's disability upon which
Executive and the Company cannot agree shall be determined by a qualified,
independent physician selected by the Company and approved by Executive
(which approval shall not be unreasonably withheld). The determination of
any such physician shall be final and conclusive for all purposes of this
Agreement. Executive or his legal representative or any adult member of
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his immediate family shall have the right to present to such physician
such information and arguments as to Executive's disability as he, she or
they deem appropriate, including the opinion of Executive's personal
physician.
"Termination for Good Reason" a termination of Executive's
employment by Executive within 30 days following (a) a material reduction
in Executive's base salary, (b) a material breach by the Company of any
covenant or obligation of the Company in any written agreement with
Executive, in any such case, without Executive's written consent, (c) a
material reduction in Executive's roles and responsibilities with the
Company or (d) the relocation of Executive's principal place of business
to a location more than 100 miles from Executive's current principal place
of business. Notwithstanding the foregoing, a termination shall not be
treated as a Termination for Good Reason unless the Executive shall have
delivered a written notice to the Company stating that he intends to
terminate his employment for Good Reason and specifying the factual basis
for such termination, and the event or events that form the basis for the
notice, if capable of being cured, shall not have been cured within 10
days of the receipt of such notice.
"Termination Without Cause" means any termination of Executive's
employment by the Company other than (i) a termination as a result of
Executive's death, (ii) a Termination due to Disability or (iii) a
Termination for Cause.
e. Full Discharge of Party's Obligations. Prior to Executive's
receipt of any amounts otherwise payable to Executive pursuant to Paragraph
6(c)(I)(A)(i) above, upon or following termination of his employment, and as a
condition to Executive's right to receive such amounts, Executive shall deliver
to the Company an acknowledgment that such amounts shall be in full and complete
satisfaction of Executive's rights under this Agreement and any other claims he
may have in respect of his employment by the Company or any of its subsidiaries.
Such amounts shall constitute liquidated damages with respect to any and all
such rights and claims and, upon Executive's receipt of such amounts, the
Company and its subsidiaries and Affiliates shall be released and discharged
from any and all liability to Executive in connection with this Agreement or
otherwise in connection with Executive's employment with the Company or any of
its subsidiaries. The acknowledgment shall constitute a general release of all
claims against the Company and its subsidiaries and Affiliates. If Executive
fails to deliver such acknowledgment within thirty days of the receipt by
Executive of a request for such acknowledgment, Executive shall not be entitled
to any payments pursuant to Paragraph 6(c)(I)(A)(i) above. Notwithstanding the
foregoing provisions of this Paragraph 6(e), the Executive shall not be
precluded from seeking to enforce the rights accorded to him as an officer of
the Company under the Company's organizational documents. For purposes of this
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Agreement, the term "Affiliate" means any entity that controls, is controlled by
or is under common control with the Company.
7. Noncompetition and Confidentiality.
a. Noncompetition. During (i) the Employment Period and (ii) the
Severance Period and any extensions thereto (the Employment Period, together
with the period under clause (ii), the "Restriction Period"), Executive shall
not directly or indirectly engage in Competitive Activity within the United
States and any other country in which Parent, the Company or any of their
respective Affiliates or any of their respective successors is doing business.
"Competitive Activity" shall mean to be directly or indirectly engaged in a
business which at the time of Executive's termination of employment is
competitive with (i) the Company, any of its Affiliates or any of their
respective successors, or (ii) Parent's or any of its Affiliates' or any of
their respective successors' businesses involved in the sale, leasing and
distribution of Practice Management, Home Health Care, transaction processing,
acute care systems, and Ambulatory Clinical computer systems and all
accessories, service and supplies associated therewith ("Parent's Business"),
and that may reasonably be considered as being potentially harmful to the
profitability of Parent's Business, the Company or any of their respective
Affiliates or any of their respective successors. Notwithstanding clause (ii) of
the foregoing sentence, Executive shall not be precluded from engaging in any
activity that is competitive with the banking or insurance business of the
Parent, its' Affiliate or their respective successors. In case of doubt,
Executive must, before engaging in the activity, seek written approval from the
Company's Chief Executive Officer, who shall decide, based on the facts, whether
the activity is likely to be competitive and exercise discretion accordingly.
b. Confidentiality. Without the prior written consent of the Company
Board, except to the extent required by an order of a court having competent
jurisdiction or under subpoena from a government agency, during the Employment
Period and the ten year period following any termination of Executive's
employment with the Company, Executive shall not disclose, or use for any
purpose other than in connection with his employment with the Company or its
Affiliates, any trade secrets, customer lists, drawings, designs, information
regarding product development, marketing plans, sales plans, pricing models,
manufacturing plans, management organization information (including data and
other information relating to members of the Parent Board or the Company Board
and management), operating policies or manuals, business plans, financial
records, packaging design or other financial, commercial, business or technical
information relating to the Company or any of its subsidiaries or Affiliates or
information designated as confidential or proprietary that the Company or any of
its subsidiaries or Affiliates may receive belonging to suppliers, customers or
others who do business with the Company or any of its subsidiaries or Affiliates
(collectively, "Confidential Information") to any third person unless such
Confidential Information has been
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previously disclosed to the public by the Company or is in the public domain
(other than by reason of Executive's breach of this Paragraph 7(b)) or unless
the disclosure of such confidential information would not reasonably be likely
to have a material adverse effect on the market value, business, operations,
results of operations, assets, financial conditions or prospects of the Company
or any of its subsidiaries.
c. Ownership of Intellectual Property Rights. Executive acknowledges
that all of Executive's work on and contributions to the business of the Company
and/or any of its subsidiaries or Affiliates, including, without limitation, any
and all ideas, processes, methods, systems, programs, programming aids,
manufacturing techniques, software, flowcharts, developments, inventions,
enhancements, modifications and improvements which contribute to the business of
the Company and/or any of its subsidiaries, whether patented, patentable or
unpatentable, created by Executive during his employment by the Company
(collectively, the "Works") are within the scope of Executive's employment with
the Company, are a part of the services, duties and responsibilities of
Executive for the Company, are a result of the efforts of the Company and is the
property of the Company and not of Executive. All of Executive's work on and
contributions to the Works shall be rendered and made by Executive for, at the
instigation of, and under the overall direction of the Company, and all of
Executive's said work and contributions, as well as the Works, are and at all
times shall be regarded as "work made for hire" as that term is used in the
United States Copyright Laws. Without curtailing or limiting these
acknowledgments, Executive hereby assigns, grants and delivers exclusively to
the Company all rights, titles and interests in and to any such Works, and all
copies and versions, including all copyrights and renewals. At any time upon
reasonable request by the Company, Executive will execute and deliver to the
Company, or its successors and assigns, such other and further assignments,
instruments and documents as the Company (or such successors or assigns) from
time to time reasonably may request for the purpose of establishing,
registering, evidencing, and enforcing or defending its complete, exclusive,
perpetual and worldwide ownership of all rights, titles, interests and
copyrights, in and to the Works, and Executive hereby constitutes and appoints
the Company as his agent and attorney-in-fact, with full power of substitution,
to execute and deliver such assignments, instruments or documents as Executive
may fail or refuse to execute and deliver, within five business days of
Executive's receiving written request from the Company to execute said
assignment, instrument or document, this power and agency being coupled with an
interest and being irrevocable. Executive shall from time to time as the Company
may reasonably request communicate and make known to the Company all knowledge
possessed by him relating to the Works; provided, however, that nothing herein
shall be construed as requiring any such communication where the Work is
lawfully protected from disclosure as the trade secret of a third party. Every
Work shall be and remain the exclusive property of the Company, it being the
intention of the parties that the Company shall have sole and exclusive
ownership rights in and to the Works.
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Executive shall keep such records in connection with his employment
as the Company may from time to time reasonably direct, and all such records
shall be the sole and exclusive property of the Company. At any time and from
time to time, promptly upon the Company's request, Executive shall surrender to
the Company any and all documents, memoranda, computer programs, codes, disks,
diskettes, magnetic tapes, books, papers, letters, price lists, notebooks,
reports, logbooks, sales records, customer lists, activity reports, video or
audio recordings, and any and all copies thereof, relating to the business of
the Company or any of its subsidiaries, any Confidential Information and all
Works.
d. Company Property. Promptly following Executive's termination of
employment with the Company, Executive shall return to the Company all property
of the Company or any of its subsidiaries or Affiliates, all Confidential
Information, all Works, and all copies thereof, in whatever medium, in
Executive's possession or under his control.
e. Non-Solicitation of Employees. During the Restriction Period,
except in connection with the performance of Executive's duties hereunder during
the Employment Period, Executive shall not, and shall not encourage or assist
any other person, firm, corporation or other entity to, induce any employee of
the Company or any of its subsidiaries or Affiliates to terminate employment
with such entity, and shall not directly or indirectly, either individually or
as owner, agent, employee, consultant or otherwise, employ or offer employment
to any person who is or was employed by the Company or any of its subsidiaries
or Affiliates unless such person shall have ceased to be employed by such entity
for a period of at least 6 months.
f. Non-Solicitation of Customers. During the Restriction Period,
Executive shall not, and shall not encourage or assist any other person, firm,
corporation or other entity to, solicit or otherwise attempt to establish for
himself or any other person, firm or entity, any business of a nature that is
competitive with the business or relationship of the Company or any of its
subsidiaries with any person, firm or corporation which during the twelve-month
period preceding the prohibited activity was a customer, client or distributor
of the Company or any of its subsidiaries, other than any such solicitation on
behalf of the Company during Executive's employment hereunder during the
Employment Period.
g. Injunctive Relief with Respect to Covenants. Executive
acknowledges and agrees that the covenants and obligations of Executive with
respect to noncompetition, "works made for hire," nonsolicitation,
confidentiality and Company property relate to special, unique and extraordinary
matters and that a violation or threatened violation of any of the terms of such
covenants or obligations will cause the Company and its subsidiaries and
Affiliates irreparable injury for which adequate remedies are not available at
law. Therefore, Executive agrees that the Company shall be
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entitled to an injunction, restraining order or such other equitable relief
(without the requirement to post bond) restraining Executive from committing or
threatening to commit any violation of the covenants and obligations contained
in this Paragraph 7. These injunctive remedies are cumulative and are in
addition to any other rights and remedies the Company may have at law or in
equity or pursuant to this Agreement.
8. Miscellaneous.
a. Survival. Paragraphs 6 (relating to early termination), 7
(relating to noncompetition, "works made for hire," nonsolicitation and
confidentiality) and 8 (relating to miscellaneous provisions) shall survive the
termination hereof, whether such termination shall be by expiration of the
Employment Period or an early termination pursuant to Paragraph 6 hereof.
b. Binding Effect. This Agreement shall be binding on, and shall
inure to the benefit of, the Company and any person or entity that succeeds to
the interest of the Company (regardless of whether such succession does or does
not occur by operation of law) by reason of the sale of all or a portion of the
Company's stock, a merger, consolidation or reorganization involving the Company
or, unless the Company otherwise elects in writing, a sale of the assets of the
business of the Company (or portion thereof) in which Executive performs a
majority of his services. This Agreement shall also inure to the benefit of
Executive's heirs, executors, administrators and legal representatives.
c. Assignment. Except as provided under Paragraph 8(b),
neither this Agreement nor any of the rights or obligations hereunder shall
be assigned or delegated by any party hereto without the prior written
consent of the other party.
d. Entire Agreement. This Agreement (which incorporates the terms of
the Cover Letter) constitutes the entire agreement between the parties hereto
with respect to the matters referred to herein. No other agreement relating to
the terms of Executive's employment by the Company, oral or otherwise, shall be
binding between the parties unless it is in writing and signed by the party
against whom enforcement is sought. There are no promises, representations,
inducements or statements between the parties related to the subject matter
hereof or otherwise relating to Executive's employment other than those that are
expressly contained herein. Executive acknowledges that he is entering into this
Agreement of his own free will and accord, and with no duress, that he has been
represented and fully advised by competent counsel in entering into this
Agreement, that he has read this Agreement and that he understands it and its
legal consequences. This Agreement supersedes all prior agreements between the
Company and Executive.
e. Severability; Reformation. In the event that one or more of the
provisions of this Agreement shall become invalid, illegal or unenforceable in
any
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respect, the validity, legality and enforceability of the remaining provisions
contained herein shall not be affected thereby. In the event any subparagraph of
Paragraph 7 is not enforceable in accordance with its terms, Executive and the
Company agree that such subparagraph shall be reformed to make such subparagraph
enforceable in a manner which provides the Company the maximum rights permitted
at law.
f. Waiver. Waiver by any party hereto of any breach or default by
the other party of any of the terms of this Agreement shall not operate as a
waiver of any other breach or default, whether similar to or different from the
breach or default waived. No waiver of any provision of this Agreement shall be
implied from any course of dealing between the parties hereto or from any
failure by either party hereto to assert its or his rights hereunder on any
occasion or series of occasions.
g. Notices. Any notice required or desired to be delivered under
this Agreement shall be in writing and shall be delivered personally, by courier
service, by registered mail, return receipt requested, or by telecopy and shall
be effective upon actual receipt by the party to which such notice shall be
directed, and shall be addressed as follows (or to such other address as the
party entitled to notice shall hereafter designate in accordance with the terms
hereof):
If to the Company:
Sunquest Information Systems, Inc.
0000 Xxxx Xxxxxxxx Xxxxxxxxx
Xxxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
If to Executive, to him at the address set forth on the signature
page hereof.
h. Amendments. This Agreement may not be altered, modified or
amended without the mutual consent of the parties hereto and except by a
written instrument signed by each of the parties.
i. Headings. Headings to paragraphs in this Agreement are for
the convenience of the parties only and are not intended to be part of or to
affect the meaning or interpretation hereof.
j. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
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k. Withholding. Any payments provided for herein shall be reduced by
any amounts required to be withheld by the Company from time to time under
applicable Federal, State or local income or employment tax laws or similar
statutes or other provisions of law then in effect. All determinations of the
amount required to be withheld by the Company hereunder shall be determined by
the Company.
l. Governing Law. This Agreement shall be governed by the
laws of the Commonwealth of Pennsylvania, without reference to principles of
conflicts or choice of law under which the law of any other jurisdiction
would apply.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized officer and Executive has hereunto set his hand
as of the day and year first above written.
SUNQUEST ACQUISITION CORPORATION
By: /s/ Xxx Xxxxxxx
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Name: Xxx Xxxxxxx
EXECUTIVE:
/s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
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