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EXHIBIT 10.4
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "AGREEMENT") is
dated as of the 15th day of August, 2002 by and between J. Kenneth Luke
("EXECUTIVE") and MedQuest, Inc., a Delaware corporation (the "COMPANY").
W I T N E S S E T H:
WHEREAS, the Company's parent, MQ Associates, Inc., a Delaware
corporation ("PARENT") and Executive are parties to an Employment Agreement,
dated as of October 8, 1999 (the "ORIGINAL EMPLOYMENT AGREEMENT");
WHEREAS, the Company desires to assume the obligations of the
Parent and continue the employment of Executive as a senior executive of the
Company, and Executive has agreed to continue such employment, on the terms set
forth in this Agreement; and
WHEREAS, the Parent, the Company and Executive desire to amend and
restate the Original Employment Agreement in its entirety by entering into this
Agreement.
NOW, THEREFORE, in consideration of the mutual promises and
covenants herein contained, the parties hereto agree as follows:
Section 1. EMPLOYMENT. The Company hereby employs Executive and Executive
accepts such employment upon the terms and conditions hereinafter set forth.
Section 2. TERM OF EMPLOYMENT. Subject to earlier termination pursuant to
the provisions of SECTION 6, the term of Executive's employment pursuant to this
Agreement shall commence on and as of the date hereof (the "EFFECTIVE DATE") and
shall terminate on the fifth anniversary of the Effective Date (such period, the
"EMPLOYMENT PERIOD").
Section 3. DUTIES; EXTENT OF SERVICE. During the Employment Period,
Executive (a) shall serve as a senior executive officer of the Company with the
title and position of President reporting to the Board of Directors of the
Company (the "BOARD OF DIRECTORS") and (b) shall have supervisory responsibility
in such capacity over such matters as may be specified from time to time by the
Board of Directors, consistent with Executive's position and general area of
experience and skills, PROVIDED that, in all cases Executive shall be subject to
the oversight and supervision of the Board of Directors in the performance of
his duties, (c) upon the request of the Board of Directors, shall serve as an
officer and/or director of any of the Company's subsidiaries, and (d) shall
render all services reasonably incident to the foregoing. Executive hereby
accepts such employment, agrees to serve the Company in the capacities
indicated, and agrees to use Executive's best efforts in, and shall devote
Executive's full working time, attention, skill and energies to, the advancement
of the interests of the Parent, the Company and their subsidiaries and the
performance of Executive's duties and responsibilities hereunder. The Executive
shall not during the Employment Period be engaged in any other business activity
which, in the reasonable judgment of the Board of Directors, would conflict with
the ability of
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the Executive to perform his duties under this Agreement, whether or not such
activity is pursued for gain, profit or other pecuniary advantage. The
foregoing, however, shall not be construed as preventing Executive from engaging
in religious, charitable or other community or non-profit or passive investment
activities (including the investment in real estate or other businesses
consistent with the non-competition restrictions referenced in SECTION 8 of this
Agreement) that do not substantially impair Executive's ability to fulfill
Executive's duties and responsibilities under this Agreement.
Section 4. SALARY.
(a) During the Employment Period, the Company shall pay Executive
total base compensation at the rate of $500,000.00 per annum (the "SALARY").
Such Salary shall be subject to withholding under applicable law, shall be pro
rated for partial years and shall be payable in periodic installments not less
frequently than monthly in accordance with the Company's usual practice for
senior executive officers of the Company as in effect from time to time.
(b) During the Employment Period, Executive shall also be eligible
for bonuses or other performance-based compensation arrangements (the "BONUS")
as determined from time to time by the Board of Directors in its discretion
reasonably based in substantial part on the profitability of those operations
for which Executive has responsibility, which determination shall include those
financial and performance metrics historically used by the Board of Directors in
its Bonus review and which Bonus shall be calculated consistently with the
Company's historical practices.
Section 5. BENEFITS.
(a) During the Employment Period, Executive shall be entitled to
participate in any and all medical, pension, profit sharing, dental and life
insurance plans and disability income plans, retirement arrangements and other
employment benefits as in effect from time to time for senior executive officers
of the Company generally. Such participation shall be subject to (i) the terms
of the applicable plan documents (including, as applicable, provisions granting
discretion to the Board of Directors or any administrative or other committee
provided for therein or contemplated thereby) and (ii) generally applicable
policies of the Company.
(b) During the Employment Period, Executive shall receive paid
vacation annually in accordance with the Company's practices for executive
officers, as in effect from time to time, but in any event not less than four
weeks per calendar year; PROVIDED, HOWEVER, that Executive shall be entitled to
accumulate not more than eight weeks of unused vacation for which Executive
shall be compensated if Executive's employment is terminated, unless such
termination is for Cause.
(c) The Company shall promptly reimburse Executive for all
reasonable business expenses incurred by Executive during the Employment Period
in accordance with the Company's practices for senior executive officers of the
Company, as in effect from time to time.
(d) Compliance with the provisions of this SECTION 5 shall in no way
create or be deemed to create any obligation, express or implied, on the part of
the Company or any of its
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affiliates with respect to the continuation of any particular benefit or other
plan or arrangement maintained by them or their subsidiaries as of or prior to
the date hereof or the creation and maintenance of any particular benefit or
other plan or arrangement at any time after the date hereof, except as
contemplated by SECTION 5(b).
Section 6. TERMINATION AND TERMINATION BENEFITS. Notwithstanding the
provisions of SECTION 3, Executive's employment under this Agreement shall
terminate under the following circumstances set forth in this SECTION 6.
(a) TERMINATION BY THE COMPANY FOR CAUSE. The Employment Period may
be terminated by the Company for Cause without further liability on the part of
the Company effective immediately upon a vote of the Board of Directors and
written notice to Executive. "CAUSE" shall mean a finding by the Board of
Directors that Executive has (a) acted with gross negligence or willful
misconduct in connection with the performance of his duties hereunder, (b)
committed an act of common law fraud against the Parent, the Company, their
subsidiaries or their respective affiliates and executive officers; (c) been
convicted of a felony; (d) embezzled assets of the Parent, the Company or any of
their subsidiaries; or (e) engaged in an activity constituting moral turpitude,
which in the discretion of the Board of Directors has had a material adverse
impact on the performance of Executive's duties hereunder.
(b) TERMINATION BY EXECUTIVE. The Employment Period may be
terminated by Executive by written notice to the Board of Directors at least 90
days prior to such termination, such termination to be effective on the date
specified in such notice.
(c) TERMINATION BY THE COMPANY WITHOUT CAUSE. Executive's employment
under this Agreement may be terminated by the Company upon a vote of the Board
of Directors without Cause upon written notice to Executive, such termination to
be effective 30 days after the giving of such notice.
(d) CERTAIN TERMINATION BENEFITS. Unless otherwise specifically
provided in this Agreement, all of the Company's obligations under this
Agreement shall terminate on the date of termination of the Employment Period.
Notwithstanding the foregoing, in the event of termination of Executive's
employment with the Company pursuant to SECTION 6(c) above, the Company shall
provide to Executive the following termination benefits ("TERMINATION
BENEFITS"):
(i) continuation of Executive's Salary at the rate then in
effect pursuant to SECTION 4;
(ii) the product of (A) an amount equal to the aggregate amount
of the Bonus the Executive received in the preceding calendar year and (B)
in the case that the Termination Benefits Period (as defined below) is (X)
18 months, 1.5, or (Y) 24 months, 2.0; and
(iii) continuation of group health, dental, and disability plan
benefits as described in SECTION 5(a) of this Agreement, with the cost for
such benefits shared in the same relative proportion by the Company and
Executive as in effect on the date of termination.
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The Termination Benefits set forth in (i), (ii) and (iii) above shall continue,
so long as Executive is in compliance with Executive's continuing obligations
under this Agreement, until eighteen (18) months after the date of termination
and any amounts payable pursuant to CLAUSE (ii) shall be paid in equal
installments in connection with those amounts payable pursuant to CLAUSE (i);
PROVIDED, HOWEVER, that in the event that (A) any two of the individuals named
in SECTION 3.1(a)(i) of the Stockholders' Agreement dated as of the date hereof,
among the Parent and the stockholder signatories thereto, and designated to
serve on the board of directors of the Parent pursuant thereto, are no longer
members of the board of directors of the Parent and (B) the Executive is
terminated without Cause at any time thereafter, the continuation of Termination
Benefits pursuant to this sentence shall be for a period of twenty-four (24)
months from the date of termination; and, PROVIDED, FURTHER that in the event
that Executive commences any employment or self-employment during the period
during which Executive is entitled to receive Termination Benefits (the
"TERMINATION BENEFITS PERIOD"), the remaining amount of Salary due pursuant to
SECTION 6(d)(i) for the period from the commencement of such employment or
self-employment to the end of the Termination Benefits Period shall be reduced
by the aggregate gross amount of the compensation or income received by
Executive as a result of such employment or self-employment, and the payments
provided under SECTION 6(d)(ii) shall cease to be effective as of the date of
commencement of such employment or self-employment. The Company's liability for
Salary continuation pursuant to SECTION 6(d)(i) shall be reduced by the amount
of any severance pay due or otherwise paid to Executive pursuant to any
severance pay plan or stay bonus plan of the Company. Notwithstanding the
foregoing, nothing in this SECTION 6(d) shall be construed to affect Executive's
right to receive COBRA continuation entirely at Executive's own cost to the
extent that Executive may continue to be entitled to COBRA continuation after
Executive's right to cost sharing under SECTION 6(d)(ii) ceases. Executive shall
be obligated to give prompt notice of the date of commencement of any employment
or self-employment (which results in an obligation to pay federal
self-employment taxes) during the Termination Benefits Period and shall respond
promptly to any reasonable inquiries concerning any employment or
self-employment in which Executive engages during the Termination Benefits
Period. The Company and Executive agree that the Termination Benefits paid by
the Company to Executive under this SECTION 6(d) shall be in full satisfaction,
compromise and release of any claims arising out of any termination of
Executive's employment pursuant to SECTION 6(c), and that the payment of the
Termination Benefits shall be contingent upon Executive's delivery of a general
release of any and all claims (other than those arising under this SECTION 6(d))
upon termination of employment in a form reasonably satisfactory to the Company,
it being understood that no Termination Benefits shall be provided unless and
until Executive executes and delivers such release. Notwithstanding anything
contained herein to the contrary, any payment required to be made pursuant to
CLAUSE (ii) above that would result in a violation of, or a default under, the
(A) $80,000,000 Credit Agreement (as the same may be amended, supplemented,
modified or restated from time to time, without limitation, in any successor
agreement(s) thereto or in any similar provision in any refinancing thereof)
dated as of August 15, 2002 among the Parent, the Company, and the other parties
thereto (the "CREDIT AGREEMENT") or (B) Indenture relating to the purchase and
sale of the Company's Senior Subordinated Notes due 2012, dated as of August 15,
2002 among the Parent, the Company, the subsidiary guarantors listed therein,
and Wachovia Bank, National Association, as trustee (the "INDENTURE"), or any
other senior subordinated credit facility or note entered into by the Parent or
the Company with financial institutions to provide financing in lieu thereof (in
either case, as the same may be
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amended, supplemented modified or restated from time to time), shall not be made
so long as such Credit Agreement (or such refinancing) or Indenture (or such
senior subordinated credit facility or note) would prohibit such payment or such
payment would result in a violation or default thereunder; PROVIDED, HOWEVER,
that the Company shall use its good faith efforts to negotiate with the Lenders
(as such term is defined in the Credit Agreement) to permit the payment of such
amounts as promptly as practicable. Any such failure to make such payments shall
not be deemed to be a violation of this Agreement.
(e) DISABILITY. If Executive shall be disabled so as to be unable to
perform the essential functions of Executive's then existing position or
positions under this Agreement for a continuous four-month period with
reasonable accommodation, the Board of Directors may remove Executive from any
responsibilities and/or reassign Executive to another position with the Company
for the remainder of the Employment Period or during the period of such
disability. Notwithstanding any such removal or reassignment, Executive shall
continue to receive Executive's full Salary (less any disability pay or sick pay
benefits to which Executive may be entitled under the Company's policies) and
benefits under SECTION 4 of this Agreement (except to the extent that Executive
may be ineligible for one or more such benefits under applicable plan terms) for
a period of time equal to the greater of (i) six (6) months, or (ii) the
remainder of the Employment Period. If any question shall arise as to whether
during any period Executive is disabled so as to be unable to perform the
essential functions of Executive's then existing position or positions with
reasonable accommodation, Executive may, and at the request of the Company
shall, submit to the Company a certification in reasonable detail by a physician
selected by the Company to whom Executive or Executive's guardian has no
reasonable objection as to whether Executive is so disabled or how long such
disability is expected to continue, and such certification shall for the
purposes of this Agreement be conclusive of the issue. Executive shall cooperate
with any reasonable request of the physician in connection with such
certification. If such question shall arise and Executive shall fail to submit
such certification, the Company's determination of such issue shall be binding
on Executive. Nothing in this SECTION 6(e) shall be construed to waive
Executive's rights, if any, under existing law including, without limitation,
the Family and Medical Leave Act of 1993, 29 U.S.C. Section 2601 et seq. and the
Americans with Disabilities Act, 42 U.S.C. Section 12101 et seq.
(f) DEATH. Executive's employment and all obligations of the Company
hereunder shall terminate upon the death of Executive, other than the obligation
to pay earned but unpaid Salary.
(g) CONTINUING OBLIGATIONS. Notwithstanding termination of this
Agreement as provided in this SECTION 6 or any other termination of Executive's
employment with the Company, Executive's obligations under SECTION 7 and SECTION
8 hereof shall survive any termination of Executive's employment with the
Company at any time and for any reason.
Section 7. CONFIDENTIALITY; PROPRIETARY RIGHTS.
(a) In the course of performing services hereunder on behalf of the
Company (for purposes of this SECTION 7 including all predecessors and
successors of the Company) and its affiliates, Executive has had and from time
to time will have access to Confidential Information (as defined below).
Executive agrees (a) to hold the Confidential Information in strict
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confidence, (b) not to disclose the Confidential Information to any person
(other than in the ordinary course of the regular business of the Company or its
affiliates), and (c) not to use, directly or indirectly, any of the Confidential
Information for any purpose other than on behalf of the Parent, the Company and
their affiliates. All documents, records, data, apparatus, equipment and other
physical property, whether or not pertaining to Confidential Information, that
are furnished to Executive by the Parent or the Company or are produced by
Executive in connection with Executive's employment will be and remain the sole
property of the Parent or the Company, as applicable. Upon the termination of
the Employment Period for any reason and as and when otherwise requested by the
Company, all Confidential Information (including, without limitation, all data,
memoranda, customer lists, notes, programs and other papers and items, and
reproductions thereof relating to the foregoing matters) in Executive's
possession or control, shall be immediately returned to the Company.
(b) Executive hereby confirms that Executive is not bound by the
terms of any agreement with any previous employer or other party that restricts
in any way Executive's use or disclosure of information or Executive's
engagement in any business. Executive represents to the Company that Executive's
execution of this Agreement, Executive's employment with the Company and the
performance of Executive's proposed duties for the Company will not violate any
obligations Executive may have to any such previous employer or other party. In
Executive's work for the Company, Executive will not disclose or make use of any
information in violation of any agreements with or rights of any such previous
employer or other party, and Executive will not bring to the premises of the
Company any copies or other tangible embodiments of non-public information
belonging to or obtained from any such previous employment or other party.
(c) During and after the Employment Period, Executive shall
reasonably cooperate with the Parent and the Company in the defense or
prosecution of any claims or actions now in existence or which may be brought in
the future against or on behalf of the Parent or the Company or any of their
respective affiliates that relate to events or occurrences that transpired while
Executive was employed by the Company. Executive's reasonable cooperation in
connection with such claims or actions shall include, but not be limited to,
being available to meet with counsel to prepare for discovery or trial and to
act as a witness on behalf of the Parent or the Company or any of their
respective affiliates at mutually convenient times. During and after the
Employment Period, Executive also shall reasonably cooperate with the Parent and
the Company in connection with any investigation or review of any federal, state
or local regulatory authority as any such investigation or review relates to
events or occurrences that transpired while Executive was employed by the
Company. The Company shall pay Executive reasonable compensation for the time
spent in the cooperation sought under this SECTION 7(c) and reimburse Executive
for any reasonable out-of-pocket expenses incurred in connection with
Executive's performance of obligations pursuant to this SECTION 7(c).
(d) Executive recognizes that the Parent, the Company and their
respective affiliates possess a proprietary interest in all of the information
described in SECTION 7(a) and have the exclusive right and privilege to use,
protect by copyright, patent or trademark, or otherwise exploit the processes,
ideas and concepts described therein to the exclusion of Executive, except as
otherwise agreed between the Company and Executive in writing. Executive
expressly agrees that any products, inventions, or discoveries made by Executive
or
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Executive's agents or affiliates in the course of Executive's employment,
including any of the foregoing which is based on or arises out of the
information described in SECTION 7(a), shall be the property of and inure to the
exclusive benefit of the Company. Executive further agrees that any and all
products, inventions, or discoveries developed by Executive (whether or not able
to be protected by copyright, patent or trademark) during the course of his
employment, or involving the use of the time, materials or other resources of
the Parent, the Company or any of their respective affiliates, shall be promptly
disclosed to the Company and shall become the exclusive property of the Company,
and Executive shall execute and deliver any and all documents necessary or
appropriate to implement the foregoing.
(e) During the Employment Period, Executive will offer or otherwise
make known or available to it, as directed by the Board of Directors and without
additional compensation or consideration, any business prospects, contracts or
other business opportunities that Executive may discover, find, develop or
otherwise have available to Executive in the Company's general industry and
further agrees that any such prospects, contacts or other business opportunities
shall be the property of the Company.
(f) Executive acknowledges that the provisions of this SECTION 7 and
SECTION 8 are an integral part of Executive's employment arrangements with the
Company.
(g) For purposes of this Agreement, the term "CONFIDENTIAL
INFORMATION" shall mean: information belonging to the Parent, the Company or any
of their subsidiaries which is of value to the Parent, the Company or any of
their subsidiaries or with respect to which the Parent or the Company has right
in the course of conducting its respective business and the disclosure of which
could result in a competitive or other disadvantage to the Parent or the
Company. Confidential Information includes information, whether or not
patentable or copyrightable, in written, oral, electronic or other tangible or
intangible forms, stored in any medium, including, by way of example and without
limitation, trade secrets, ideas, concepts, designs, configurations,
specifications, drawings, blueprints, diagrams, models, prototypes, samples,
flow charts processes, techniques, formulas, software, improvements, inventions,
data, know-how, discoveries, copyrightable materials, marketing plans and
strategies, sales and financial reports and forecasts, studies, reports,
records, books, contracts, instruments, surveys, computer disks, diskettes,
tapes, computer programs and business plans, prospects and opportunities (such
as possible acquisitions or dispositions of businesses or facilities) which have
been discussed or considered by the management of the Parent, the Company or any
of their subsidiaries. Confidential Information includes information developed
by Executive in the course of Executive's employment by the Company, as well as
other information to which Executive may have access in connection with
Executive's employment. Confidential Information also includes the confidential
information of others with which the Parent, the Company or any of their
subsidiaries has a business relationship. Notwithstanding the foregoing,
Confidential Information does not include information in the public domain,
unless due to breach of Executive's duties under SECTION 7(a).
Section 8. NON-COMPETITION; NON-SOLICITATION.
(a) Each of Executive and the Company agree and acknowledge that
the provisions of SECTION 10.5 of the Recapitalization Agreement dated as of
July 16, 2002 among
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Executive, the Parent and the other parties thereto (as amended, the
"RECAPITALIZATION AGREEMENT") are expressly incorporated herein by reference.
(b) During the Non-Compete Period (as defined in the
Recapitalization Agreement), Executive covenants and agrees that he will not,
directly or indirectly, either for himself or for any other person (i) solicit
any officer, manager, employee or independent contractor of the Parent, the
Company or any subsidiary to terminate his or her employment or relationship
with the Parent, the Company or any subsidiary, and to become employed by
Executive or any business or entity with which Executive is affiliated as an
owner, investor, lender, or in any other capacity or employ any such individual
during his or her employment with the Parent, the Company or any subsidiary, and
for a period of one (1) year after such individual terminates his or her
employment with the Parent, the Company or any subsidiary, (ii) solicit any past
or present customer, doctor, radiologist, healthcare provider or patient of the
Parent, the Company or any subsidiary, (iii) divert to any business or entity
any present or future doctor, radiologist, healthcare provider or patient of the
Parent, the Company or any subsidiary, or (iv) take any action that may cause
injury to the relationships among the Parent, the Company or any subsidiary and
any of their employees and any lessor, lessee, vendor, supplier, customer,
employee, consultant or other business associate of the Parent, the Company or
any subsidiary.
(c) Executive acknowledges that the foregoing restrictions are not
intended to limit his ability to earn a livelihood, but are, among other things,
intended to prevent a Competitive Business (as defined in the Recapitalization
Agreement) from gaining an unfair advantage from Executive's knowledge of
confidential and proprietary information of the Parent, the Company and their
subsidiaries, including information of the Parent, the Company and their
subsidiaries that has commercial value in the Competitive Business. Executive
believes that he has received sufficient consideration and other benefits
provided hereunder and under the Recapitalization Agreement to clearly justify
such restrictions which, in any event (given his education, skills and ability),
he does not believe would prevent him from otherwise earning a living.
Section 9. PARTIES IN INTEREST; CERTAIN REMEDIES. It is specifically
understood and agreed that this Agreement is intended to confer a benefit,
directly and indirectly, on the Parent, the Company and their direct and
indirect subsidiaries and affiliates, and that any breach of the provisions of
this Agreement by Executive or any of Executive's affiliates will result in
irreparable injury to the Parent, the Company and their subsidiaries and
affiliates, that the remedy at law alone will be an inadequate remedy for such
breach and that, in addition to any other remedy it may have, the Parent, the
Company or their subsidiaries and affiliates shall be entitled to enforce the
specific performance of this Agreement by Executive through both temporary and
permanent injunctive relief without the necessity of posting a bond or proving
actual damages, but without limitation of their right to damages and any and all
other remedies available to them, it being understood that injunctive relief is
in addition to, and not in lieu of, such other remedies.
Section 10. DISPUTE RESOLUTION. Each of the Company and Executive (a)
hereby unconditionally and irrevocably submits to the non-exclusive jurisdiction
of the United States District Court for the Northern District of Georgia for the
purpose of enforcing the award or decision in any such proceeding and (b) hereby
waives, and agrees not to assert in any civil
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action to enforce the award, any claim that it is not subject personally to the
jurisdiction of the above-named court, that its property is exempt or immune
from attachment or execution, that the civil action is brought in an
inconvenient forum, that the venue of the civil action is improper or that this
Agreement or the subject matter hereof may not be enforced in or by such court,
and (c) hereby waives and agrees not to seek any review by any court of any
other jurisdiction which may be called upon to grant an enforcement of the
judgment of any such court and (d) hereby unconditionally and irrevocably waives
all rights to trial by jury in any suit, action, proceeding or counterclaim
arising out of or relating to this Agreement. Each of the Company and Executive
hereby consents to service of process by registered mail at the address to which
notices are to be given. Each of the Company and Executive agrees that its
submission to jurisdiction and its consent to service of process by mail are
made for the express benefit of the other parties hereto. Final judgment against
the Company or Executive in any such action, suit, or proceeding may be enforced
in other jurisdictions by suit, action, or proceeding on the judgment, or in any
other manner provided by or pursuant to the laws of such other jurisdiction;
PROVIDED, HOWEVER, that any party may at its option bring suit, or institute
other judicial proceedings, in any state or federal court of the United States
or of any country or place where the other parties or their assets, may be
found.
Section 11. NOTICES. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if faxed (with transmission acknowledgment received), delivered
personally or by nationally recognized overnight courier (providing proof of
delivery) or mailed by certified or registered mail (return receipt requested)
as follows:
To the Company:
MedQuest, Inc.
4300 North Point Parkway
Alpharetta, GA 30022
Fax: (770) 246-0202
Attention: The Members of the Board of Directors
with a copy to:
O'Sullivan LLP
30 Rockefeller Center
New York, New York 10112
Fax: (212) 408-2420
Attention: Christopher P. Giordano, Esq.
To Executive:
c/o MedQuest, Inc.
4300 North Point Parkway
Alpharetta, GA 30022
Fax: (770) 246-0202
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or to such other address or fax number of which any party may notify the other
parties as provided above. Notices shall be effective as of the date of such
delivery, mailing or fax.
Section 12. SCOPE OF AGREEMENT. The parties acknowledge that the time,
scope, geographic area and other provisions of SECTION 8 hereof have been
specifically negotiated by sophisticated parties and agree that all such
provisions are reasonable under the circumstances of the transactions
contemplated hereby, and are given as an integral and essential part of the
transactions contemplated hereby. Executive has independently consulted with
counsel and has been advised in all respects concerning the reasonableness and
propriety of the covenants contained herein, with specific regard to the
business to be conducted by the Parent, the Company and their subsidiaries and
affiliates, and represents that this Agreement is intended to be, and shall be,
fully enforceable and effective in accordance with its terms.
Section 13. SEVERABILITY. In the event that any covenant contained in this
Agreement shall be determined by any court of competent jurisdiction to be
unenforceable by reason of its extending for too great a period of time or over
too great a geographical area or by reason of its being too extensive in any
other respect, it shall be interpreted to extend only over the maximum period of
time for which it may be enforceable and/or over the maximum geographical area
as to which it may be enforceable and/or to the maximum extent in all other
respects as to which it may be enforceable, all as determined by such court in
such action. The existence of any claim or cause of action which Executive may
have against the Parent, the Company or any of their subsidiaries or affiliates
shall not constitute a defense or bar to the enforcement of any of the
provisions of this Agreement.
Section 14. MISCELLANEOUS. This Agreement shall be governed by and
construed under the laws of the State of Georgia, except for the provisions of
SECTION 8 which shall be governed by and construed under the laws of the State
of New York, both without consideration of its choice of law provisions, and
shall not be amended, modified or discharged in whole or in part except by an
agreement in writing signed by both of the parties hereto. The failure of either
of the parties to require the performance of a term or obligation or to exercise
any right under this Agreement or the waiver of any breach hereunder shall not
prevent subsequent enforcement of such term or obligation or exercise of such
right or the enforcement at any time of any other right hereunder or be deemed a
waiver of any subsequent breach of the provision so breached, or of any other
breach hereunder. This Agreement shall inure to the benefit of, and be binding
upon and assignable to, successors of the Company by way of merger,
consolidation or sale and may not be assigned by Executive. This Agreement
supersedes and terminates all prior understandings and agreements between the
parties (or their predecessors) relating to the subject matter hereof, including
the Original Employment Agreement, and this Agreement hereby amends and restates
the Original Employment Agreement in its entirety. For purposes of this
Agreement, the term "PERSON" shall be construed broadly and shall include an
individual, a partnership, a corporation, a limited liability company, an
association, a joint stock company, a trust, a joint venture, an unincorporated
organization or a governmental authority (or any department, agency or political
subdivision thereof); a "SUBSIDIARY" of a person means any corporation more than
50 percent of whose outstanding voting securities, or any partnership, joint
venture or other entity more than 50 percent of whose total equity interest, is
directly or indirectly owned by such person; and an "AFFILIATE" of a person
shall mean, with respect to a
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person or entity, any person or entity which directly or indirectly controls, is
controlled by, or is under common control with such person or entity.
* * *
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IN WITNESS WHEREOF, the parties have executed this Amended and
Restated Employment Agreement under seal as of the date first set forth above.
COMPANY:
MEDQUEST, INC.
By: /s/ GENE VENESKY
--------------------------
Gene Venesky
Chairman and CEO
EXECUTIVE:
By: /s/ J. KENNETH LUKE
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J. Kenneth Luke
President
AGREED AND ACKNOWLEDGED
BY THE PARENT:
MQ ASSOCIATES, INC.
By: /s/ GENE VENESKY
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Gene Venesky
Chairman and CEO
Luke Employment Agreement