Exhibit 10.1
LanVision Systems, Inc.
Agreement dated December 8, 2004 among Eric S. Lombardo, LanVision Systems, Inc.
and LanVision, Inc.*
AGREEMENT
This Agreement is entered into this 8th day of December, 2004, by and
among Eric S. Lombardo ("Executive"), LanVision Systems, Inc. ("LANV") and
LanVision, Inc. ("Subsidiary," and together with LANV and their respective
subsidiaries, divisions, past and current affiliated companies, and their
respective successors and assigns, sometimes hereinafter collectively referred
to as "LanVision" or "Company").
WHEREAS, Executive currently is employed as an executive officer pursuant
to the terms of that certain Employment Agreement effective February 1, 2004 by
and among Executive, LANV and Subsidiary as attached hereto as Exhibit A
("Employment Agreement"); and
WHEREAS, Executive has submitted his written resignation to LanVision
whereby he has resigned from all positions he currently holds with LanVision,
including but not limited to his positions as a director and an executive
officer of each of LANV and Subsidiary, effective as of the date hereof; and
WHEREAS, Executive and LanVision mutually desire that Executive continue
to be available to provide consulting services to LanVision and to take other
actions as may be necessary or appropriate to effect a smooth transition of
Executive's active involvement in the operations of LanVision.
NOW, THEREFORE, in consideration of the foregoing premises and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. RESIGNATION; MUTUAL TERMINATION OF EMPLOYMENT AGREEMENT. Executive has
submitted his resignation from all positions held by him with LanVision,
including but not limited to his positions as a director and Executive Vice
President, Sales and Marketing of each of LANV and Subsidiary, and LanVision has
accepted such resignation, effective as of the date of this Agreement (the
"Effective Date"). Executive and LanVision agree that Executive's resignation as
a director, as distinct from his position as an executive officer, is not
related to any disagreement between them. Executive and LanVision further agree
that as of the Effective Date, Executive's resignation of his employment with
LanVision results in the termination of the Employment Agreement upon their
mutual agreement, and is not a termination under any of the provisions of
Section 11 of the Employment Agreement. Accordingly, the Employment Agreement
shall have no further force or effect except for those provisions that by their
terms survive termination and continue in effect, including but not limited to
Section 7 (Confidential Information), Section 8 (Property of Parent and the
Company), Section 9 (Non-Competition Agreement) and Section 14
(Acknowledgements). Executive and LanVision agree to abide by all such
continuing terms, which terms are incorporated herein by reference.
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2. CONSULTING SERVICES. Executive and LanVision agree that for the time period
commencing November 1, 2004 and ending October 31, 2005 (the "Consulting
Period"), Executive shall provide consulting services as an independent
contractor to LanVision on an as needed basis as may be requested from time to
time by LanVision's Board of Directors, Chief Executive Officer or Chief
Operating Officer. Such consulting services shall include, without limitation,
any assistance that LanVision may request of Executive in transitioning client
relationships and in providing information about existing, past and prospective
customers of LanVision with whom Executive was involved. Executive and LanVision
agree that no minimum or maximum number of times or hours for which Executive
may be asked to provide his consulting services has been established. Executive
agrees to use his good faith efforts to be available to LanVision when his
consulting services are requested and to perform such services conscientiously.
LanVision agrees to use its best efforts to provide reasonable advance notice to
Executive of the times that his consulting services will be required and to be
reasonable as to the frequency and number of hours that Executive will be asked
to consult. LanVision further agrees that Executive shall not be required to
provide consulting services at any time that would conflict or interfere with
Executive's employment by any third party or his efforts in obtaining such new
employment.
3. COMPENSATION; EXPENSES; BENEFITS. During the Consulting Period, LanVision
will pay Executive in exchange for his consulting services a consulting fee in
an aggregate amount of Two Hundred Thousand Dollars ($200,000.00). Such
compensation will be paid in twelve monthly installments as follows: for the
month of November, 2004, the compensation paid to Executive pursuant to his
Employment Agreement for November shall constitute the consulting fee for that
month; and for the eleven remaining months of the Consulting Period beginning
with a monthly payment on December 15, 2004 and each subsequent payment on the
15th day of each month thereafter, the Company shall pay Executive the
consulting fee in the amount of Sixteen Thousand Six Hundred Sixty Six Dollars
and Sixty Seven Cents ($16,666.67). As an independent contractor, Executive
shall be responsible for and shall pay any and all amounts required to be paid
to any federal, state or local government as a result of consulting services
performed pursuant to this Agreement, including but not limited to amounts due
for income tax, social security, unemployment insurance and workers'
compensation. During the Consulting Period, LanVision shall continue to provide
Executive with a car allowance in the amount and on the same terms and
conditions as currently provided to him and shall reimburse Executive for all
travel and out-of-pocket expenses reasonably incurred or paid by Executive in
connection with the performance of Executive's consulting services upon
compliance with LanVision's procedures for expense reimbursements, including the
presentation of expense statements, receipts or such other supporting
documentation as LanVision may reasonably require. LanVision shall further
provide to Executive through October 31, 2006, at no cost to Executive,
continued health care and dental care insurance coverage under LanVision's plans
as currently exist, subject to any changes in such plans or replacement plans
which may be offered to LanVision's officers from time to time hereafter. In
addition, LanVision agrees that: (a) it will reimburse Executive in an amount up
to $6,500 for his legal expenses incurred in connection with the preparation,
negotiation and execution of this Agreement; (b) it will pay to Executive
through the Company's payroll payments on December 15, 2004 an amount equal to
the value of all accrued but unused vacation time to which Executive was
entitled as of October 31, 2004; and (c) in the event that LanVision elects to
extend the non-competition period as set forth in Section 9 of the Employment
Agreement from October 31, 2005 to October 31, 2006, then
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LanVision shall provide Executive with written notice of such extension no later
than April 30, 2005 and, in consideration thereof, LanVision shall pay to
Executive the amount of Two Hundred Thousand Dollars ($200,000.00) in a lump sum
payment on or before October 31, 2005.
4. LANVISION PROPERTY. Immediately upon the execution of this Agreement,
Executive will cease to use any LanVision credit cards, and will return all
LanVision property which Executive has in his possession or control whether at
LanVision, at home or elsewhere, including without limitation any and all
LanVision records, files, and documents (whether on computer or not), software,
keys, cellular/digital telephones, or parking passes. Notwithstanding the
foregoing, LanVision agrees that: (a) Executive may keep the photograph in his
office relating to LanVision's initial public offering; (b) Executive may
purchase his laptop computer and/or desktop computer consistent with LanVision's
existing practice of allowing employees to purchase such used items for a
nominal price (approximately $50 for each such computer that Executive elects to
purchase); and (c) Executive may retain all personal information and all
non-technical information contained on such computers, provided, however, that
no information retained by Executive shall constitute material, non-public
information about LanVision, its products or its services. In order to effect
the transfer of files pursuant to the standards in Section 4(c), LanVision
personnel will remove all information from the computers desired to be purchased
by Executive and will transfer the information to be retained by Executive onto
a disk, which disk will be provided to Executive, Executive shall be permitted
to observe and participate in this file transfer procedure, and both Executive
and LanVision agree to cooperate with each other in good faith to accomplish the
orderly transfer of such information.
5. PIGGYBACK REGISTRATION RIGHTS.
5.1. Right to Piggyback. At any time during the Consulting Period, if
LanVision proposes to register any LANV common stock for sale pursuant to a
registration statement filed with the Securities and Exchange Commission ("SEC")
under the Securities Act of 1933, as amended (the "Act"), including any
registration statement filed by LanVision upon the exercise by Blue Chip Capital
Fund Limited Partnership ("Blue Chip") of its demand registration right pursuant
to that certain Stock Purchase and Shareholder Agreement dated as of December 1,
1994, as amended February 8, 1996 (the "Blue Chip Agreement"), then LanVision
promptly will give written notice to Executive of such intention. Upon the
written request of Executive given with 20 calendar days after such notice is
given (the "Piggyback Notice"), LanVision shall use its best efforts to cause up
to 100,000 shares of LANV common stock owned by Executive (or such lesser number
of shares as may be requested by Executive or as permitted to be registered by
Executive pursuant to Section 5.2 hereof) to be included under the proposed
registration statement. The right of Executive to exercise his piggyback
registration rights under this Section 5.1 shall continue beyond the end of the
Consulting Period with respect to any proposed registration by LanVision
initiated prior to October 31, 2005. Notwithstanding the foregoing, LanVision
shall not be required to offer piggyback registration rights to Executive in
connection with a registration of LANV common stock on Form S-4 relating to any
merger or similar transaction for which such form of registration statement is
permitted nor on Form S-8 relating to any employee benefit or incentive plans
offered by LanVision for its employees.
5.2. Coordination with Blue Chip Registration Rights. Executive
acknowledges and agrees that LanVision previously has granted similar piggyback
registration rights to Blue Chip
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pursuant to the Blue Chip Agreement. Executive hereby agrees that his right to
exercise piggyback registration rights pursuant to Section 5.1 above shall arise
only with respect to any proposed registration by LanVision in which Blue Chip
elects to exercise either its demand registration right or its piggyback
registration rights. In the event that Blue Chip does exercise its registration
rights and thereafter, in the case of an underwritten registration, the managing
underwriters advise LanVision in writing that in their opinion, the number of
shares of common stock requested to be included in such registration by all
selling shareholders (including but not limited to Blue Chip and Executive)
exceeds the number which can be sold in an orderly manner within a price range
acceptable to LanVision, then (a) in the case of Blue Chip exercising its
piggyback registration rights, LanVision will include in such registration (i)
first, all the securities LanVision proposes to sell, (ii) second, all the
shares of common stock requested to be included in such registration by Blue
Chip and Executive, pro rata among them on the basis of the number of shares
requested for inclusion in such registration by each of them and the total
number of shares which each of them could have requested for inclusion in the
registration (currently, 746,000 shares for Blue Chip and 100,000 shares for
Executive), and (iii) third, any other shares of common stock requested to be
included in such registration by shareholders to whom LanVision may make such
opportunity available in its sole discretion, pro rata among the holders of such
other shares on the basis of the number of securities requested for inclusion in
such registration by each such holder; or (b) in the case of Blue Chip
exercising its demand registration right, LanVision will include in such
registration (i) first, all the securities Blue Chip proposes to sell, (ii)
second, all the shares of common stock requested to be included in such
registration by Executive, up to 100,000 shares, (iii) third, all of the
securities that LanVision proposes to sell, and (iv) fourth, any other shares of
common stock requested to be included in such registration by shareholders to
whom LanVision may make such opportunity available in its sole discretion, pro
rata among the holders of such other shares on the basis of the number of
securities requested for inclusion in such registration by each such holder.
5.3. Withdrawal of Registration Statement; Delay or Postponement of
Effectiveness. If, at any time after the Piggyback Notice and prior to the
effective date of the registration statement filed in connection with such
registration, LanVision shall determine for any reason not to register common
stock in connection with such registration statement, LanVision may, in its sole
discretion, give written notice of such determination to Executive and thereupon
LanVision shall be relieved of its obligation to register any of Executive's
shares in connection with such registration. LanVision further may delay or
postpone seeking the effectiveness of the registration statement in its sole
discretion.
5.4. Registration Procedures. Subject to the other provisions of this
Section 5 including without limitation the provisions of Section 5.3, whenever
Executive has requested that any of his shares be registered in connection with
a piggyback registration pursuant to this Agreement, LanVision will use
reasonable efforts to effect the registration and facilitate the sale and
distribution of all such shares specified in such registration request, subject
to any reduction required pursuant to Sections 5.1 or 5.2 (the "eligible
shares") in accordance with the intended method of disposition thereof and
pursuant thereto LanVision will as expeditiously as possible:
(a) prepare and file with the SEC a registration statement which
includes the Executive's eligible shares and use reasonable efforts to cause
such registration statement to become effective and to comply as to form in all
material respects with the requirements of the applicable form and include all
financial statements required by the SEC to be filed therewith;
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(b) prepare and file with the SEC such amendments, post-effective
amendments and supplements to such registration statement and the prospectus
used in connection therewith as may be necessary to keep such registration
statement continuously effective for the period required by the intended method
of disposition, and comply with the provisions of the Act with respect to the
disposition of all securities covered by such registration statement during such
period in accordance with the intended methods of disposition by the sellers
thereof set forth in such registration statement, provided, however, that
LanVision shall not be required to file, cause to become effective or maintain
the effectiveness of any registration statement that contemplates a distribution
of securities on a delayed or continuous basis pursuant to Rule 415 under the
Act;
(c) furnish to Executive, without charge, such number of copies of
such registration statement, each amendment, post-effective amendment and
supplement thereto, the prospectus included in such registration statement
(including each preliminary prospectus) and such other documents as Executive
may reasonably request in order to facilitate the disposition of the eligible
shares owned by him;
(d) use reasonable efforts to register or qualify Executive's
eligible shares under such other securities or blue sky laws of such
jurisdictions as Executive reasonably requests and do any and all other acts and
things which may be reasonably necessary or advisable to enable Executive to
consummate the disposition in such jurisdictions of the eligible shares
(provided that LanVision will not be required to (i) qualify generally to do
business in any jurisdiction where it would not otherwise be required to qualify
but for this subparagraph, (ii) subject itself to taxation in any such
jurisdiction, (iii) consent to general service of process in any such
jurisdiction (unless LanVision is subject to service in such jurisdiction and
except as may be required by the Act), or (iv) qualify such eligible shares in a
given jurisdiction where expressions of investment intent are not sufficient in
such jurisdiction to reasonably justify the expense of qualification in that
jurisdiction or where such qualification would require LanVision to register as
a broker or dealer in such jurisdiction);
(e) promptly notify Executive, at any time when a prospectus
relating to the eligible shares is required to be delivered under the Act, of
the happening of any event as a result of which the prospectus included in such
registration statement contains an untrue statement of a material fact or omits
any material fact necessary to make the statements therein not misleading;
(f) cause all such eligible shares to be listed on each securities
exchange on which LANV common stock is then listed and to be qualified for
trading on each system on which similar securities issued by LANV are from time
to time qualified; and
(g) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any shares of common stock included in such registration statement for sale in
any jurisdiction, LanVision will promptly notify Executive and use reasonable
efforts to promptly obtain the withdrawal of such order.
Executive agrees that, upon receipt of any notice from LanVision of the
happening of any event of the kind described in paragraphs 5.4(e) or (g) hereof,
he will forthwith discontinue disposition of his eligible shares until his
receipt of copies of an appropriate supplement or
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amendment to the prospectus under paragraph 5.4(e) or until the withdrawal of
such order under paragraph 5.4(g). Executive further agrees that he will
cooperate with LanVision, Blue Chip and the managing underwriter to facilitate
the timely preparation and delivery of certificates representing the eligible
shares to be sold, and along with Blue Chip, enter into such agreements
(including underwriting agreements and lock up agreements) with the managing
underwriter of such offering as such managing underwriter may request.
5.5. Participation in Registrations. Executive agrees that he may not
participate in any registration hereunder which is underwritten unless he: (a)
agrees to sell his eligible shares on the basis provided in any underwriting
arrangements approved by LanVision and Blue Chip; (b) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents as may be reasonably requested by LanVision, Blue Chip or the
managing underwriters of the offering or as required under the terms of such
underwriting arrangements, provided that Executive shall not be required to make
any representations or warranties to LanVision, Blue Chip or the underwriters
other than representations and warranties regarding Executive and Executive's
intended method of distribution. Executive further agrees that, in connection
with any registration of eligible shares, he will provide such information to
LanVision as is requested by LanVision and is necessary and/or desirable to
ensure full compliance by LanVision with federal and state securities laws and
that Executive will have no right to withdraw any of his eligible shares
included in such offering subsequent to the distribution of any preliminary
prospectus by LanVision and/or the managing underwriter of such offering absent
the written approval by LanVision, which approval may be withheld in LanVision's
sole discretion.
5.6. Registration Expenses. All expenses incurred by LanVision in
complying with this Section 5, including without limitation all registration and
filing fees, printing expenses, expenses of complying with securities or blue
sky laws, fees and disbursements of counsel for LanVision and counsel for any
underwriters of the offering and any accountant's fees and expenses incident to
or required by any such registration, will be borne by LanVision to the maximum
extent permitted by law. Executive agrees that he will bear his own legal fees
and expenses and all underwriting fees, commissions, discounts and expenses
applicable to the shares sold by him.
5.7. Indemnification.
(a) LanVision agrees to indemnify, to the extent permitted by law,
Executive against all losses, claims, damages, liabilities and reasonable
expenses, including any of the foregoing, and reasonable fees and expenses of
counsel, incurred in investigating, preparing or defending against, and
aggregate amounts paid in settlement of, any litigation, action, investigation
or proceeding by any governmental agency or body, commenced or threatened, in
each case whether or not a party, based upon, caused by or arising out of any
untrue or alleged untrue statement of material fact contained in any
registration statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto required to be filed or prepared hereunder on
behalf of Executive or any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as the same are caused by or contained in any
information furnished in writing to LanVision by Executive (or on behalf of
Executive) expressly for use therein.
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(b) In connection with any registration statement in which Executive
is participating, Executive will furnish to LanVision in writing such
information relating to him as LanVision reasonably requests for use in
connection with any such registration statement or prospectus and, to the extent
permitted by law, will indemnify LanVision, its directors, stockholders,
employees and officers and each person who controls (within the meaning of the
Act) LanVision against any losses, claims, damages, liabilities and reasonable
expenses as incurred, including any of the foregoing, and reasonable fees and
expenses of counsel incurred in investigating, preparing or defending against,
and aggregate amounts paid in settlement of, any litigation, action,
investigation or proceeding by any governmental agency or body, commenced or
threatened, in each case whether or not a party, or any claim whatsoever, based
upon, caused by or arising out of any untrue or alleged untrue statement of
material fact contained in the registration statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto or any omission or
alleged omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading, but only to the extent that such
untrue statement or omission is contained in any information so furnished in
writing by Executive expressly for such purpose.
(c) Any person entitled to indemnification hereunder will (i) give
reasonably prompt written notice to the indemnifying party of any claim with
respect to which it seeks indemnification and (ii) unless in such indemnified
party's reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party. If such defense is assumed, the
indemnifying party will not be subject to any liability for any settlement made
by the indemnified party without its consent (but such consent will not be
unreasonably withheld). An indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim will not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim.
(d) The indemnification provided for under this Agreement will
remain in full force and effect regardless of any investigation made by or on
behalf of the indemnified party or any officer, director, manager, agent or
controlling person of such indemnified party and will survive the transfer of
securities. LanVision also agrees to make such provisions, as are reasonably
requested by any indemnified party, for contribution to such party in the event
LanVision's indemnification is unavailable for any reason. Such right to
contribution shall be in such proportion as is appropriate to reflect the
relative fault of LanVision on the one hand and Executive on the other (in such
proportions that Executive is severally, not jointly, responsible for the
balance), in connection with the statements or omissions which resulted in such
losses, claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative fault of the indemnifying party and
indemnified parties shall be determined by reference to, among other things,
whether the action in question, including any untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact, has
been made by, or relates to information supplied by, such indemnifying party or
the indemnified parties, and the parties relative intent, knowledge, access to
information and opportunity to correct or prevent such action.
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The parties hereto agree that it would not be just or equitable if
contribution pursuant hereto were determined by pro rata allocation or by any
other method of allocation which does not take account of the equitable
considerations referred to in the immediate preceding paragraph, provided,
however, that in no event shall the aggregate liability, if any, of Executive
pursuant to this Section 5.7 exceed the net proceeds from his sale of eligible
shares. No person found guilty of any fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not found guilty of such fraudulent misrepresentation.
5.8. Selection of Underwriters. In the case of an underwritten
registration, LanVision will have the sole right to select the investment
banker(s) and manager(s) to underwrite the offering notwithstanding Executive's
exercise of his right to request a piggyback registration pursuant to this
Section 5.
6. LIMITATION ON SALE OF SHARES. Commencing upon the execution of this Agreement
and terminating upon the close of trading of the common stock of LANV on October
31, 2005 (the "Lock-Up" Period), Executive hereby agrees that he will not offer
to sell, contract to sell, or otherwise sell, dispose of, loan or grant any
rights to do any such actions (collectively, a "Disposition") with respect to
any shares of LANV common stock now owned or hereafter acquired directly or
indirectly by Executive or with respect to which Executive has or hereafter
acquires the power of disposition, otherwise than (a) as a bona fide gift or
gifts, provided the donee or donees thereof agree in writing to be bound by this
restriction, (b) with respect to purchases of common stock acquired in the
public securities markets after the date hereof, (c) with the prior written
consent of LanVision upon the approval of the board of directors of LANV, (d) in
connection with the exercise by Executive of piggyback registration rights under
Section 5 of this Agreement, or (e) the sale by Executive of up to 30,000 shares
of LANV common stock during the period commencing on May 1, 2005 through the end
of the Lock-Up Period.
The foregoing restrictions have been expressly agreed to preclude
Executive from engaging in any transaction which is designed to or reasonably
expected to lead to or result in a Disposition of shares of common stock during
the Lock-up Period, even if such shares would be disposed of by someone other
than such holder. Such prohibited transactions would include, without
limitation, any short sale (whether or not against the box) or any purchase,
sale or grant of any right (including, without limitation, any put or call
option) with respect to any shares. Executive also agrees and consents to the
entry of stop transfer instructions with LanVision's transfer agent and
registrar against the transfer of shares of common stock held by Executive
except in compliance with this Section 6.
7. REPORTS OF SECURITIES TRANSACTIONS. Executive and LanVision agree that
notwithstanding Executive's resignation hereunder from all positions held by
Executive with LanVision, Executive shall continue to be a Section 16 reporting
person for purposes of Section 16 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and the rules and regulations promulgated
thereunder until such time as Executive would own less than 10% of the
outstanding shares of common stock of LANV. Accordingly, Executive agrees to
timely file with the SEC and with LanVision's chief financial officer the
reports required pursuant to Section 16 of the Exchange Act of any and all
transactions involving shares of LANV common stock in which Executive has a
pecuniary interest. Moreover, during the Lock-Up Period
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Executive further agrees to notify LanVision of any intention on the part of
Executive to sell or otherwise trade in shares of LanVision Systems common stock
prior to engaging in such transaction, which notification may include, but not
be limited to, providing LanVision's chief financial officer with a copy of any
and all Form 144's filed by Executive with the SEC to the extent that Executive
may be deemed an affiliate of LanVision for purposes of Rule 144 under the Act.
8. NO INSIDER STATUS. Executive and LanVision agree that effective upon the
execution of this Agreement, Executive will no longer be privy to material,
non-public information regarding LanVision. Accordingly, LanVision agrees that
Executive hereafter shall not be subject to the LanVision policy on insider
trading, provided, however, that to the extent that Executive may from time to
time acquire knowledge of material, non-public information regarding LanVision,
Executive acknowledges and agrees that he may not trade based upon such
information and must comply with all applicable laws prohibiting insider
trading. LanVision further agrees that it will not intentionally provide
material, non-public information to Executive except in connection with such
events, actions or circumstances that would require shareholder approval and
LanVision has made a good faith determination that it is necessary and
appropriate to disclose such information to Executive given his then current
ownership of shares of LANV common stock, and that LanVision will use its best
efforts to prevent any inadvertent disclosures of material, non-public
information to Executive.
9. MUTUAL RELEASE. In consideration of the payments and benefits set forth in
this Agreement, such payments and benefits being good and valuable
consideration:
9.1 Release by Executive. Subject to Sections 9.2 and 9.5, Executive, and
on behalf of Executive's heirs, administrators, executors, successors, assigns
and personal representatives, covenants not to sue and hereby fully and forever
releases, acquits and discharges LanVision, its shareholders, directors,
officers, employees, agents, representatives, insurance carriers, and their
successors and assigns (collectively the "Releasees"), from any and all claims,
demands, actions and causes of action of every kind, nature or description
(collectively "claims") that Executive may have had, may now have, or may
hereafter have against Releasees, including without limitation any and all
claims in any way related to or based upon Executive's employment with and/or
the cessation of Executive's employment with LanVision, including without
limitation any claims for breach of contract, implied contract, promissory
estoppel, tortious conduct or claims arising under any federal or state statute
or law or local ordinance, including but not limited to: the Age Discrimination
in Employment Act as amended ("ADEA"); Older Workers' Benefit Protection Act
("OWBPA"); Americans with Disabilities Act ("ADA") as amended; the Family and
Medical Leave Act ("FMLA"); Title VII of the Civil Rights Act of 1964; the Civil
Rights Acts of 1991; the Employee Retirement Income Security Act ("ERISA"); 42
U.S.C. Section 1981; 29 U.S.C. Section 206(d)(1); Section 503 and 504 of the
Rehabilitation Disabilities Act; the WARN Act; Ohio's fair employment practices
statutes; any other federal, state or local law dealing with employment
discrimination; and any federal or state "Whistleblower" law, existing as of the
date of this Agreement. Provided, however, that if LanVision were to breach this
Agreement, this release would not bar an action by Executive against LanVision
to enforce its term(s). In addition, this Section 9.1 shall not affect adversely
any claims arising out of any social security, workers' compensation or
unemployment laws, or under the terms of any employee pension or welfare or
benefit plans or programs of LanVision, which may be payable now or in the
future to Executive.
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9.2. Acknowledgements by Executive. Executive specifically acknowledges
and agrees that: (a) Executive is waiving claims under the foregoing laws,
including specifically the ADEA and the OWBPA; (b) this waiver of any rights or
claims is knowing and voluntary; (c) this Agreement is written in a manner that
Executive understands; (d) LanVision has hereby advised Executive to consult
with an attorney before executing this Agreement and that Executive has so
consulted; (e) the waiver of rights under Section 9.1 does not waive rights or
claims arising after the date of this Agreement; (f) Executive has been given a
period of 21 days within which to consider this Agreement; (g) for a period of
seven days following Executive's execution of this Agreement, Executive may
revoke this Agreement and this Agreement will not become enforceable or
effective until the revocation period expires; and (h) the waiver of rights in
Section 9.1 is in exchange for consideration in addition to anything of value to
which Executive was already entitled to receive.
9.3. Release by LanVision. LanVision, on behalf of itself, its successors
and assigns, covenants not to sue and hereby fully and forever releases, acquits
and discharges Executive and his successors and assigns, from any and all
claims, demands, actions and causes of action of every kind, nature or
description (collectively "claims") that LanVision may have had, may now have,
or may hereafter have against Executive, including without limitation any and
all claims in any way related to or based upon Executive's employment with
and/or the cessation of Executive's employment with LanVision, including without
limitation any claims for breach of contract, implied contract, promissory
estoppel, tortious conduct or claims arising under any federal or state statute
or law or local ordinance, existing as of the date of this Agreement. Provided,
however, that if Executive were to breach this Agreement, this release would not
bar an action by LanVision against Executive to enforce its term(s).
9.4. Unknown Claims. This Agreement covers both claims that Executive
and/or LanVision know about and those that Executive and/or LanVision may not
know about. The parties hereto expressly waive all rights afforded by any
statute that limits the effect of a release with respect to unknown claims. Each
of Executive and LanVision understand the significance of its respective release
of unknown claims and the waiver of statutory protection against a release of
unknown claims.
9.5. Future Claims Related to Shareholder Status. Notwithstanding any
provision of this Section 9 that may be construed to the contrary, Executive and
LanVision agree that neither Executive nor LanVision waive or release the other
party hereto from any claim that may arise based on events occurring after the
Effective Date and that are based upon Executive's status as a shareholder of
LanVision.
10. DISCLOSURES; STATEMENTS. Executive acknowledges and agrees that
LanVision is required by federal securities laws and regulations to promptly and
publicly disclose Executive's resignation as a director and executive officer of
LanVision through both a press release and filing of a Form 8-K, which
announcement and filing shall be mutually and reasonably satisfactory to both
parties and which fully complies with the disclosure requirements of the
Exchange Act. Executive further acknowledges and agrees that LanVision will be
required to file a copy of this Agreement with the SEC, and from time to time
hereafter to make disclosures regarding Executive in LanVision's annual proxy
statement and as may be required from time to time in other filings by LanVision
pursuant to the Act or the Exchange Act. Both LanVision and Executive agree not
to intentionally make any future statements, in public and in private, regarding
Executive's resignation as a director of LanVision that would be materially
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inconsistent with the public disclosures made by LanVision in such press release
and Form 8-K, unless otherwise agreed in writing by LanVision and Executive, and
further agree to use their respective best efforts to prevent any inadvertent
future public or private statements that would be materially inconsistent with
such public disclosures.
Neither LanVision nor Executive shall make any negative statements
concerning, or take any action that disparages or derogates the other party.
Executive further agrees not to disparage or derogate any of LanVision's
operations, products, services, reputation, financial status, directors,
officers, employees or other Releasees, or otherwise damage or interfere with
any of LanVision's business relationships.
11. FUTURE EMPLOYMENT OR DIRECTORSHIP. Executive agrees that should he seek in
the future re-employment with LanVision, that LanVision shall have no obligation
whatsoever to rehire Executive. Similarly, if Executive seeks to be nominated
for election as a director of LANV, neither LanVision nor the Board of Directors
of LANV shall have any obligation to so nominate Executive, provided, however,
that upon the request of Executive, the Board of Directors will consider the
potential candidacy of Executive in connection with its then existing policies
and procedures for consideration of new board members. Executive agrees that if
he does apply for such employment and is not hired or seeks a position on the
LANV Board of Directors and is not nominated, Executive will not bring a claim
against LanVision or any of its Releasees for refusal to so hire or nominate.
12. NO ADMISSION. The parties agree that nothing contained in this Agreement, or
the offering of this Agreement, is to be considered or in any way construed as
an admission by Executive, LanVision or any Releasee of wrongdoing, of liability
or of a violation of any applicable law, contract provision or any rule or
regulation. The parties hereto expressly deny any such wrongdoing, liability or
violation.
13. NO RELIANCE. Executive and LanVision agree that he or it, respectively, has
not relied on any representations or inducements in entering into this
Agreement, other than as specifically stated herein.
14. REMEDIES; DISPUTE RESOLUTION. (a) Executive and LanVision recognize that a
material breach of any of the covenants or agreements set forth in this
Agreement (including without limitation the provisions of Section 7, 8 and 9 of
the Employment Agreement incorporated into this Agreement) will cause
irreparable harm to the other party and that actual damages may be difficult to
ascertain and in any event may be inadequate. Accordingly, each party agrees
that in the event of such breach, the other party hereto shall be entitled to
injunctive relief in addition to such other legal or equitable remedies as may
be available and the other party, at his or its option, may seek to enforce his
or its remedies through any court of competent jurisdiction. Executive also
agrees that if Executive materially breaches this Agreement, other than for a
breach of Section 2 hereof, LanVision may immediately terminate any payments or
other obligations remaining due to Executive under this Agreement, provided that
Executive may contest such termination in accordance with the arbitration
procedures set forth in Section 14(b) below, and provided, further, that all of
the other provisions of this Agreement shall remain in full force and effect
according to their terms notwithstanding any such termination of payments or
other obligations or submission of any dispute to arbitration.
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(b) Except as set forth in Section 14(a) above and in Section 14 of the
Employment Agreement (with respect to Sections 7, 8 and 9 of the Employment
Agreement), any and all disputes arising out of or in connection with the
execution, interpretation, performance or non-performance of this Agreement
(including the validity, scope and enforceability of this arbitration clause),
shall be submitted to and resolved by arbitration. The arbitration shall be
conducted pursuant to the terms of the Federal Arbitration Act and the
Commercial Arbitration Rules of the American Arbitration Association. Either
party may notify the other party at any time of the existence of an arbitrable
controversy by certified mail and shall attempt in good faith to resolve their
differences within fifteen days after the receipt of such notice. If the dispute
cannot be resolved within the fifteen-day period, either party may file a
written demand for arbitration with the American Arbitration Association. The
place of arbitration shall be Cincinnati, Ohio. Each party shall pay his or its
own expenses, including legal fees, in connection with any dispute arising under
this Agreement.
15. AMENDMENT. This Agreement cannot be amended or modified in except by mutual
written agreement of the parties.
16. SEVERABILITY. If any provision, or portion thereof, of this Agreement is
held invalid or unenforceable under applicable statute or rule of law, only that
provision or portion shall be deemed omitted from this Agreement, and only to
the extent to which it is held invalid, and the remainder of this Agreement
shall remain in full force and effect.
17. GOVERNING LAW; JURISDICTION. All disputes arising from this Agreement and
otherwise between Executive and LanVision shall be governed by the laws of the
State of Ohio, excluding its conflict of laws provisions. The exclusive
jurisdiction and venue for any dispute between the parties arising from this
Agreement or otherwise shall be in Hamilton County, Ohio.
18. COMPLETE AGREEMENT. This Agreement represents the complete agreement between
Executive and LanVision and supersedes all previous agreements between Executive
and LanVision, provided, however that the Employment Agreement shall remain in
full force and effect with respect to those portions of the Employment Agreement
that survive the termination of Executive's employment as set forth in Section 1
of this Agreement, and provided, further, that the Indemnification Agreement
dated as of January 15, 1997 by and between LanVision and Executive shall also
remain in full force and effect in its entirety. It is further understood and
acknowledged that the terms of this Agreement are contractual and not a mere
recital and that there are no agreements, understandings or representations made
by Executive or LanVision, its directors, officers, employees, agents, or
representatives, except as expressly stated herein.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
LANVISION SYSTEMS, INC.
/s/ Melissa J. Vincent By: /s/ Paul W. Bridge, Jr.
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Witness Paul W. Bridge, Jr., Chief Financial Officer
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LANVISION, INC.
/s/ Melissa J. Vincent By: /s/ Paul W. Bridge, Jr.
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Witness Paul W. Bridge, Jr., Chief Financial Officer
EXECUTIVE
/s/ M. Lauren Lombardo /s/ Eric S. Lombardo
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Witness Eric S. Lombardo
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