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EXHIBITS 10.12 AND 10.13
FORM OF AGREEMENT
FOR FINE AND PRICE
INFOCURE CORPORATION
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is entered into as of the 1st
day of December, 1996 between AMERICAN MEDCARE CORPORATION, a Delaware
corporation ("Company"), and ("Executive").
WHEREAS, the Company, through its subsidiaries, has developed and is
marketing computer software programs and related services in the health care
industry and continues to develop and market such software programs and related
services;
WHEREAS, the Company agrees to employ Executive as an executive to
provide the services set forth herein; and
WHEREAS, Executive agrees to provide such services in accordance with
the terms and conditions of this Agreement;
NOW, THEREFORE, in consideration of the mutual promises herein made and
of other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
1. EMPLOYMENT/DUTIES.
(a) The Company shall employ Executive as an executive during
the term of his employment as set forth in this Agreement and Executive hereby
accepts such employment. Executive's initial position shall be ______________ .
(b) Executive shall have such powers and duties as assigned to
him by the Board of Directors [President] of the Company from time to time.
(c) Executive shall keep the Board of Directors [President] of
the Company timely advised of all significant developments and opportunities and
shall timely consult with the Board of Directors [President] on all significant
policies and contracts. Executive's powers and duties are subject to the
supervision and instructions of the Board of Directors [Chairman and President]
of the Company.
(d) Executive will use his best efforts to perform his duties
in accordance with the applicable business plans and budgets and policies in
effect.
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(e) Executive agrees that he will at all times faithfully and
to the best of his ability and experience faithfully perform all of the duties
that may be required of him pursuant to the terms of this Agreement. Executive
shall devote his full business time to the performance of his obligations
hereunder.
2. COMPENSATION.
(a) Base Salary. During the term of his employment, including
any extension thereof pursuant to the Agreement, the Company will pay to
Executive a base salary ("Base Salary") of $ per year, payable in arrears in
equal semi-monthly payments. In the event of a disability, to the extent
payments are received under an employer-sponsored disability program, the
payments hereunder are to be reduced by an amount equal to such disability
payments.
(b) Incentive Compensation. During the term of Executive's
employment hereunder, including any extension thereof, in addition to the Base
Salary as provided in paragraph 2(a), Executive will be eligible for annual
incentive compensation ("Incentive Compensation") pursuant to a program
established by the Board of Directors in its sole discretion, from time to time,
provided that the objectives of the program are met. The Incentive Compensation
shall be pursuant to a program based upon the achieving certain revenue and/or
profit goals and/or other goals ("Goals") of the Company and/or of the business
unit for which Executive has responsibilities. Upon the establishment of the
program and Goals, the parties hereto shall enter into an agreement setting
forth the Incentive Compensation, which agreement shall be attached hereto as
Exhibit A and shall constitute a part of this Agreement.
(c) Automobile Allowance. Executive shall receive an
automobile allowance of $1,000 per month and operating costs when operated for
business purposes. The automobile allowance is payable semi-monthly together
with the Base Salary of the Executive.
(d) Employee Benefit Program. Executive shall be eligible to
participate in all employee benefit programs, including medical and
hospitalization programs, now or hereafter made available to its employees,
subject to the terms and conditions of such programs, including eligibility. It
is understood that the Company reserves the right to modify and rescind any
program or adopt new programs in its sole discretion. The Company may, in its
sole discretion, maintain key man life insurance on the life of Executive and
designate the Company as the beneficiary. Executive agrees to execute any
documents necessary to effect such policy.
(e) Expenses. Executive shall be reimbursed for expenses
reasonably incurred in the performance of his duties hereunder in accordance
with the policies of the Company then in effect.
(f) Vacation. Executive shall be entitled to weeks of vacation
for each full year of service. Vacations shall be taken at such times as not to
materially interfere with
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the business of the Company. The vacation time must be taken within the time
period specified in the program or as otherwise mutually agreed in writing,
otherwise it expires to the extent not used as of December 31.
3. TERM. The term of the employment of Executive under this Agreement
shall be for a period of five (5) years ("Initial Term") commencing on the date
hereof and ending on the fifth (5th) anniversary thereof, subject to earlier
termination as provided in Paragraph 4. The term of employment shall continue
after the Initial Term under this Agreement, subject to earlier termination as
provided in Paragraph 4, for additional one-year terms unless it is terminated
at the end of the Initial Term or as of any anniversary of the Initial Term, as
the case may be, by either party upon sixty (60) days prior written notice. If
the employment of Executive continues thereafter, absent a written agreement,
the employment shall be at will and the provisions of this Agreement shall be of
no force and effect with respect to such subsequent period, except for the
provisions of paragraphs 5, 6, and 7.
4. EARLY TERMINATION.
(a) For Cause. (1) Notwithstanding the foregoing, the Company
may terminate the employment of Executive "for cause" (as hereinafter defined)
at any time upon written notice effective immediately. The term "for cause"
shall mean (i) the continued failure by Executive substantially to perform his
duties with the Company in a reasonably professional manner other than due to
total disability or death for a period of thirty (30) days after a written
demand for substantial performance is delivered to Executive by the Board of
Directors [or Chairman or President] of the Company, which demand identifies the
manner in which the Board [or Chairman or President] believes Executive has not
substantially performed his duties, (ii) the unauthorized dissemination of
material trade secrets or other material proprietary property of the Company or
its parent or subsidiaries of its parent, (iii) the commission of a felony or
any other crime involving moral turpitude or the pleading of nolo contendere to
any such act, (iv) the commission of any act or acts of dishonesty when such
acts are intended to result or result, directly or indirectly, in gain or
personal enrichment of Executive or any related person or affiliated the Company
or are intended to cause harm or damage to the Company or its parent or
subsidiaries of its parent, (v) the illegal use of controlled substances, (vi)
the use of alcohol so as to have a material adverse effect on the performance of
his duties, (vii) the misappropriation or embezzlement of assets of the Company
or its parent or subsidiaries of its parent, (viii) the making of disparaging
remarks regarding the Company or its parent or subsidiaries of its parent or the
products or services of any such person to suppliers and/or customers of the
Company, its parent or subsidiaries of its parent, or (ix) the breach of any
other material term or provision of this Agreement to be performed by Executive
which have not been cured within thirty (30) days of receipt of written notice
of such breach.
(2) Upon termination for cause the 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
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addition, the right to exercise any vested stock option shall terminate on the
effective date of the termination of employment for cause.
(b) Termination Upon Death or Disability.
(1) The employment of Executive shall terminate upon his
death or, ten (10) business days after written notice by the Company of
termination, upon or during the continuance of the total disability (as
hereinafter defined) of Executive.
(2) Upon termination upon death or upon or during total
disability, the Company shall have no further obligation to pay any compensation
for periods after the effective date of such termination, except for Base Salary
and Incentive Compensation which accrued as of the termination date. To the
extent stock options have vested as of such termination date, they shall
continue to be exercisable for a period of twelve (12) months thereafter as set
forth in the stock option agreements not to exceed the stated expiration date of
the stock option.
(3) The term "total disability" means the inability of
Executive to substantially perform his duties hereunder for a continuous period
of thirty (30) days unless extended in writing by the Company. Total disability
shall be deemed to commence upon the expiration of such continuous thirty (30)
day period. In the event of any dispute as to the "total disability" of the
Executive, the matter shall be resolved by the decision of a single physician,
serving as an arbitrator, mutually selected or appointed in accordance with the
rules of the American Arbitration Association, Atlanta, Georgia. The decision of
the arbitrator shall be binding on all parties hereto. Executive agrees to
submit medical records requested and to submit to such examination and testing
requested by such physician.
(c) Change In Control. In the event of a Change in Control (as
hereinafter defined) of the Company and the Executive elects, in his sole
discretion, to terminate his employment hereunder as of a date within six (6)
months after the Change in Control, Executive shall give the Company two (2)
weeks prior written notice of such termination and Executive shall be entitled
to receive, and the Company shall pay, on the date of the termination of
employment an amount equal to the Executive's then annual base salary rate.
The term "Change in Control" means:
(i) The acquisition (other than from the Company) 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, the Company, its parent or its subsidiaries, or any
employee benefit plan of the Company, its parent or its subsidiaries)
of beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the 34 Act) of more than 50% of either the then outstanding
shares of common stock of the Company or of the combined voting power
of the Company's then outstanding voting securities entitled to vote
generally in the election of directors; or
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(ii) Individuals who, as of the date hereof, constitute the
board of directors of the 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 the 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 Board; or
(iii) Approval by the shareholders of the Company of a merger,
consolidation or other reorganization in each case, with respect to
which persons who were the shareholders of the Company and optionees
immediately prior to such merger, consolidation or other
reorganization, immediately thereafter, do not own more than 50% 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 the 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.
The term "Change in Control" shall not include any change in the Board
of Directors of the Company as provided in subparagraph (ii) above or any change
in ownership as provided in subparagraph (iii) above resulting from or arising
out of the merger of the Company and InfoCure Corporation.
(d) Termination by Company. In the event of the termination of
the employment of the Executive by the Company at any time during the term of
this Agreement, other than for cause, Executive shall be entitled to receive,
and the Company shall pay, on the date of the termination of employment an
amount equal to the Executive's then annual base salary rate.
5. COVENANT NOT TO COMPETE.
(a) Executive agrees that for the period commencing on the
date hereof and ending one (1) year after the expiration of the term of his
employment under this Agreement (and if employment is continued thereafter "at
will", then after termination of his employment with the Company or its parent
or subsidiaries of its parent for any reason thereafter), Executive will not,
alone or with others, directly or indirectly, own, manage, operate, join,
control, participate in the ownership, management, operation or control of, be
employed by, consult with, advise or be connected in any other manner with any
business which develops, distributes or markets software programs and/or
services which compete with the software programs and services of the kind
currently marketed by the Company for use in the United States ("Territory")
other than with the Company and its parent and subsidiaries of its parent. This
covenant not to compete shall not prohibit (i) ownership by Executive of not
more than one percent (1%) of the equity securities of companies listed on any
United States stock exchanges or traded over the counter or (ii)
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engagements which do not involve, directly or indirectly, the development,
distribution or marketing of competitive products or services by entities
engaged in such competitive businesses. The software programs and services
currently marketed by the Company are practice management software products and
services for use by health care providers, including the utilization of EDI
services by such health care providers.
The terms "distributes" and "markets" do not include distribution of
software programs by retail software outlets.
(b) Each city and county of each state and each state in the
Territory and each month of time covered by this covenant not to compete shall
be deemed a severable unit and should any court determine that the inclusion of
all states, cities and counties or months would render any such undertaking
unreasonable or unenforceable for any reason, those units which are necessary in
the judgment of the court to be deleted in order to render such an undertaking
reasonable and enforceable shall be deemed free of such non-compete undertaking,
but such undertaking shall remain in full force and effect as to every other
unit of territory and time.
6. DISCOVERIES, PATENTS, INVENTIONS AND COPYRIGHTS. Executive
shall execute simultaneously with the execution of this Agreement the standard
employee agreement of the Company regarding discoveries, patents, inventions and
copyrights, a copy of which is attached hereto as Exhibit B.
7. SPECIFIC PERFORMANCE. Because of his knowledge and experience,
Executive agrees that the Company shall be entitled to specific performance or
an injunction or other similar relief in addition to all other rights and
remedies it might have for any violation of the undertakings set forth in
Paragraphs 5 and 6 of this Agreement without the posting of a bond or other
security and without the proof of actual damages.
8. NOTICES. All notices, requests, demands and other communications
required or permitted hereunder shall be in writing and shall be deemed to have
been given upon receipt when delivered by hand or by express mail, overnight
courier or other similar method or by facsimile transmission (provided a copy is
also sent by registered or certified mail), or five (5) days after deposit of
the notice in the U.S. Mail, if mailed by certified or registered mail, with
postage prepaid addressed to the respective party as set forth below, which
address may be changed by written notice to the other party:
(a) If to the Company:
American Medcare Corporation
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Attention: Board of Directors [President]
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(b) If to Executive:
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9. BINDING EFFECT. This Agreement shall inure to the benefit of and be
binding upon and enforceable by Executive and his estate, personal
representatives and heirs, and by the Company and its successors and assigns.
This Agreement and the payments hereunder may not be assigned, pledged or
otherwise hypothecated by Executive. This Agreement may be assigned by the
Company to any subsidiary of the Company or of its parent, if any, and to any
successor of its business; provided, however, such assignment shall not relieve
the Company of its obligations hereunder.
10. ENTIRE AGREEMENT. This Agreement is intended by the parties hereto
to constitute the entire understanding of the parties with respect to the
employment of Executive by the Company and supersedes all prior agreements and
understandings oral or written. All prior agreements between Executive and the
Company or any subsidiary are null and void, as of the date hereof, except for
such accrued liabilities that are recorded as a liability as of such date on the
financial books and records of such company.
11. BINDING ARBITRATION/ATTORNEY FEES. Except as otherwise specifically
provided, all disputes arising under this Agreement shall be submitted to and
settled by arbitration. Arbitration shall be by one (1) arbitrator selected in
accordance with the rules of the American Arbitration Association, Atlanta,
Georgia ("AAA") by the AAA. The hearings before the arbitrator shall be held in
Atlanta, Georgia and shall be conducted in accordance with the rules existing at
the date thereof of the AAA to the extent not inconsistent with this Agreement.
The decision of the arbitrator shall be final and binding as to any matters
submitted to them under this Agreement. All costs and expense incurred in
connection with any such arbitration proceeding and those incurred in any civil
action to enforce the same shall be borne by the party against which the
decision is rendered.
12. AMENDMENTS. This Agreement may not be amended or modified except in
a writing signed by both parties.
13. WAIVERS. The failure of either party to insist upon a strict
performance of any provision hereof shall not constitute a wavier of such
provision. All waivers must be in writing.
14. GOVERNING LAW. This Agreement shall be deemed to be made in and in
all respects shall be interpreted, construed and governed by and in accordance
with the laws of the State of Georgia.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
AMERICAN MEDCARE CORPORATION
By:
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Name:
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Title:
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EXECUTIVE
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Name:
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EXHIBIT A
INCENTIVE COMPENSATION
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EXHIBIT B
EMPLOYMENT AGREEMENT REGARDING
DISCOVERIES, PATENTS, INVENTIONS AND COPYRIGHTS
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