ADAC LABORATORIES
HCIS EXECUTIVE SEVERANCE AGREEMENT
THIS HCIS EXECUTIVE SEVERANCE AGREEMENT is made and entered into as
of ____, 199_ by and between ADAC LABORATORIES (the "Company") and _______
("Executive").
WHEREAS, the Board of Directors (the "Board") of the Company has
recommended and authorized the Company entering into a severance agreement in
the form hereof with Executive; and
WHEREAS, the Board has determined that, in the event of a possible,
threatened or pending sale or other change in control of the Company (or its
subsidiaries), it is imperative that the Company and the Board be able to rely
upon Executive to continue in Executive's position, and that the Company be able
to receive and rely upon Executive's advice, if requested, as to the best
interests of the Company and its shareholders without concern that Executive
might be distracted by the personal uncertainties and risks created by any such
possible transactions; and
WHEREAS, in connection with the foregoing, Executive may, in addition
to Executive's regular duties, be called upon to assist in the assessment of any
such possible transactions, advise management and the Board as to whether such
proposals would be in the best interests of the Company and its shareholders,
and to take such other actions as the Board might determine to be appropriate.
NOW, THEREFORE, to assure the Company that it will have the continued
dedication of Executive and the availability of Executive's advice and counsel
notwithstanding the possibility, threat or occurrence of a sale of the Company
or other Change of Control, and to induce Executive to remain in the employ of
the Company, and for other good and valuable consideration, the Company and
Executive agree as follows:
1. EVENTS CAUSING PAYMENT OF SEVERANCE BENEFIT.
(a) If Executive is employed full-time by the Company (or one of
its subsidiaries) at the time of a "Change in Control" (as defined in Section 4
hereof), Executive shall be entitled to a Severance Payment as set forth in
Section 2 hereof, payable upon the occurrence of the Change in Control;
PROVIDED, HOWEVER, that if, within ten (10) days prior to the Change in Control,
Executive is offered employment by the Company (or one of its subsidiaries) or
its successor corporation on "Similar Terms" (as hereinafter defined) to those
then applicable to him as an executive employee of the Company (or one of its
subsidiaries), the Severance Payment shall be paid to him twelve (12) months
following the Change in Control, but only if the following events occur: (i)
Executive accepts such employment and (ii) Executive is not, during such twelve
(12) month period, terminated as an employee of the Company (or one of its
subsidiaries) or its successor corporation for "Cause" (as hereinafter defined).
(b) "Similar Terms" shall mean (i) duties and responsibilities
similar to those then applicable to Executive as an employee of the Company (or
one of its subsidiaries), (ii) base salary, cash incentive bonuses and other
non-cash perquisites no less than that received by Executive from the Company
(or one of its subsidiaries) during the twelve (12) months prior to the Change
in Control and (iii) a place of employment within ten miles of Executive's
then-existing place of employment.
(c) "Cause" shall mean any of the following: (i) gross and
willful refusal, which continues after thirty (30) days' written warning, to
discharge the normal and material employment duties required of the Executive,
(ii) theft or other misappropriation of Company (or one of its subsidiaries)
property, trade secrets or other intellectual property rights and use thereof to
the detriment of the Company or its successor corporation or (iii) commission of
a crime such that the Company's reputation with its customers is materially
damaged and cannot be repaired. Becoming fully or partially disabled (whether
mental or physical) shall not be deemed "Cause" herein.
(d) Notwithstanding the foregoing, should Executive be offered
employment upon Similar Terms which is accepted by him, he shall be entitled to
receive the Severance Payment immediately, without having to wait for the
expiration of the twelve-month period hereinabove provided, if at any time his
employer proposes to revise the terms and conditions of his employment in such a
manner that his employment would no longer be on Similar Terms.
(e) The death of Executive following a Change in Control shall
require the immediate payment of the Severance Payment, if not theretofore paid,
to Executive's successors as defined in Section 15 hereof.
(f) Notwithstanding anything to the contrary contained herein,
the Severance Benefit described in Section 2 hereof shall be immediately payable
to Executive and all of Executive's Unvested Options shall immediately and fully
vest and become exercisable should (i) one or more persons or entities propose
any of the transactions or events described in Section 4 hereof AND (ii) such
person(s) or entity(ies) demand, as a condition thereof, that this Severance
Agreement be terminated prior to any Change in Control (as defined in Section 4
hereof).
(g) If a Change in Control of ADAC Healthcare Information
Systems, Inc. ("HCIS") shall occur, as such term is defined in the HCIS 1997
Stock Option Plan, or if HCIS is "spun-off" by the Company to its shareholders
and, as a result of either event occurring, Executive is no longer employed by
the Company or any of its other subsidiaries, then for twelve months thereafter,
the Executive shall be retained by the Company as a part-time employee or
consultant at a salary of $1,000 per month (but with no fringe benefits) and all
Company stock options then held by him shall continue in force and remain
subject to his normal vesting provisions during such twelve-month period.
2. AMOUNT OF SEVERANCE PAYMENT.
The amount of the Severance Payment payable to Executive pursuant to
this Agreement shall be determined in accordance with the following formula:
2.99 times the average annual compensation (including, without limitation, base
salary, bonuses, gains on stock option exercises etc.) includable on Executive's
Form W-2 as a result of services performed for the Company (or its subsidiaries)
during the sixty-month period ending immediately preceding the calendar year in
which the event giving rise to the requirement to pay such Severance Payment to
Executive occurs; provided , however, that if Executive was not employed by the
Company (or its subsidiaries) for all of such sixty-month period, the Severance
Payment payable to Executive pursuant to this Agreement shall be 2.99 times the
average annual compensation includable on Executive's Form W-2 as a result of
services performed for the Company (or its subsidiaries) during his or her
actual period of employment; provided, further, that if Executive's period of
employment with the Company includes a partial year, Executive's compensation
for that partial year shall be annualized (for purposes of the calculations
required by this Section 2). Notwithstanding the foregoing,
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the Severance Payment and, if necessary, the value of any option acceleration
and any other benefits pursuant to Section 3 or otherwise shall be reduced by
such amount as is necessary, in the opinion of tax counsel or other appropriate
tax advisor selected in good faith by the Company, so that no portion of the
foregoing will be subject to excise taxes for an "excess parachute payment"
under Internal Revenue Code Section 280(g).
3. STOCK OPTIONS.
(a) Ten (10) days prior to a Change in Control (as defined in
Section 4 hereof), those stock options held by Executive to purchase shares of
common stock of ADAC Laboratories which are then not exercisable ("Unvested
Options") shall immediately vest and become exercisable, notwithstanding the
vesting schedule set forth in Executive's stock option agreement(s). In the
event that (i) Executive exercises the Unvested Options, (ii) Executive sells or
otherwise disposes of the shares so purchased and (iii) Executive is offered
employment by the Company or its successor corporation on Similar Terms (as
defined in Section 1(b) above), he or she shall deposit into an escrow account
with a bank or trust company satisfactory to the Company or its successor an
amount equal to 50% of the difference between (x) the sale proceeds received
from the shares sold or otherwise disposed of which were obtained through the
exercise of previously Unvested Options (without regard to any Federal or state
income taxes which may result from such transaction) and (y) the purchase price
for such shares (such amount is hereinafter referred to as the "Escrowed
Amount"). For purposes of this subparagraph, if such shares are disposed of
without consideration or for a consideration less than the prevailing market
price for such shares at the time of such disposition, the market price of ADAC
Laboratories common stock on the date of such sale (or disposition at less than
fair market value) shall be used to determine the Escrowed Amount.
(b) The Escrowed Amount, including any interest earned
thereon, shall be returned to Executive twelve (12) months following the Change
in Control if, and only if, (i) Executive has accepted the employment which was
offered on Similar Terms and (ii) Executive has not, during such twelve-month
period, been terminated as an employee of the Company (or its subsidiary) or its
successor corporation for Cause (as defined in Section 1(c) above). If
Executive does not accept such employment or accepts such employment and is
terminated during such twelve-month period for Cause, the Escrowed Amount shall
be delivered to the Company or its successor corporation and Executive shall
have no further right thereto. Notwithstanding the foregoing, if at any time
prior to such twelve-month period, Executive's employer proposes to revise the
terms and conditions of his or her employment such that his or her employment
would no longer be on Similar Terms or terminates Executive without Cause, the
Escrowed Amount shall be returned to Executive upon the date of such employer's
proposal or such termination.
4. CHANGE IN CONTROL.
(a) A Change in Control of the Company shall be deemed to have
occurred if (i) any "person" or "group" (as defined in or pursuant to Sections
13(d) or 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act")), becomes the "beneficial owner" (as defined in Rule 13d-3 promulgated
under the Exchange Act), directly or indirectly, of securities of the Company
representing 40% or more of the voting power of the common stock outstanding
which votes generally for the election of directors; or (ii) as a result of
market or corporate transactions or stockholder action, the individuals who
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constitute the Board of Directors of the Company at the beginning of any period
of 12 consecutive months (but commencing not earlier than March 1, 1998), plus
any new directors whose election or nomination was approved by a vote of at
least two-thirds of the directors still in office who were directors at the
beginning of such period of 12 consecutive months, cease for any reason during
such period of 12 consecutive months to constitute at least two-thirds of the
members of such Board; or (iii) the Company sells, through merger, assignment or
otherwise, in one or more transactions, other than in the ordinary course of
business, assets which provided at least 2/3 of the revenues or pre-tax net
income of the Company and its subsidiaries on a consolidated basis during the
most recently-completed fiscal year; (iv) the Company sells, through merger,
assignment or otherwise, one of its subsidiaries, which is the principal
employer of the Executive; provided, however, for purposes of this subsection
4(a)(iv), no "Change in Control" shall be deemed to have occurred if Executive
is offered comparable employment (similar duties and compensation) by the
Company (or its subsidiaries) at any of its facilities; provided, however, that
the Executive's employment will not cease to be "comparable employment" solely
as a result of a change in duties or responsibilities solely by virtue of
Executive being employed by the Company or another subsidiary of the Company
rather than the subsidiary that is being sold.
(b) Notwithstanding paragraph (a) above, the following events
shall not constitute a Change in Control: any acquisition of beneficial
ownership pursuant to (i) a reclassification, however effected, of the Company's
authorized common stock, or (ii) a corporate reorganization involving the
Company or any of its subsidiaries which does not result in a material change in
the ultimate ownership by the shareholders of the Company (through their
ownership of the Company or its successor resulting from the reorganization) of
the assets of the Company and its subsidiaries, but only if such
reclassification or reorganization has been approved by the Company's Board of
Directors or (iii) a "spin-off" by the Company of all or any portion of its
ownership of any of its subsidiaries to the Company's then existing
shareholders, whereby the Company's shareholders become shareholders in the
subsidiary, regardless of whether such transfer of ownership is by a
distribution of the Company's ownership of the subsidiary's stock, by a direct
issuance by the subsidiary of its shares to such shareholders or by any other
method.
5. FRINGE BENEFITS.
(a) The Company shall provide to Executive (and his spouse and
other qualified dependents), for at least 12 months following a Change in
Control (and whether or not Executive is offered or accepts continuing
employment with the Company or its successor) all Fringe Benefits (as defined
below) that were available to Executive (and his spouse or qualified dependents)
immediately prior to the Change in Control. For purposes of this Agreement, the
term "Fringe Benefits" shall include, without limitation, all life, dental,
vacation, health, accident and disability benefit plans, other similar welfare
plans, country club dues, the provision of a company-owned automobile,
company-paid tax advice, professional financial planning assistance or any
equivalent successor policy, plan, program or arrangement that may now exist or
be adopted hereafter by the Company or its subsidiaries. Notwithstanding the
foregoing, with respect to any Fringe Benefits provided through an insurance
policy, the Company's obligation to provide such Fringe Benefits following a
Change in Control if Executive does not continue employment with the Company,
its subsidiaries or successors shall be limited by the terms of such policy;
provided, however, that (i) the Company shall make reasonable efforts to amend
such policy to provide the continued coverage described in this Section 5(a),
and (ii) if such policy is not amended to provide the continued benefits
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described in this Section 5(a), the Company shall pay for the cost of comparable
replacement coverage.
(b) If prior to the Change in Control the Executive was required
to contribute towards the payment of a Fringe Benefit as a condition of
receiving such Fringe Benefit, the Executive may be required to continue
contributing towards the payment of such Fringe Benefit under the same terms and
conditions as applied to the Executive immediately prior to the Change in
Control in order to receive such Fringe Benefit.
6. OTHER EMPLOYEE BENEFITS. The benefits provided to Executive
hereunder shall not be affected by or reduced because of any other benefits
(including, but not limited to, salary, bonus, pension, or stock option) to
which Executive may be entitled by reason of his employment with the Company or
any subsidiary thereof or the termination of his employment with the Company,
and no other such benefit by reason of such employment shall be so affected or
reduced because of the benefits bestowed by this Agreement.
7. WITHHOLDING; NO RIGHT OF SET-OFF. All amounts payable by the
Company hereunder shall be subject to withholding of such amounts related to
taxes as the Company may be legally obligated to so withhold. The right of
Executive to receive benefits under this Agreement, however, shall be absolute
and shall not be subject to any set-off, counterclaim, recoupment, defense, duty
to mitigate or other right the Company or its subsidiaries may have against him
or anyone else, except as specifically provided for herein.
8. SUBSEQUENT EMPLOYMENT. Executive's right to receive benefits
under this Agreement shall not be reduced by reason of Executive's employment
with any other employer after terminating employment with the Company or any of
its subsidiaries. Any compensation for services rendered or consulting fees
earned after the date of termination shall not diminish Executive's right to
receive all amounts due hereunder.
9. SUBSIDIARY AND COMPANY DEFINED. For purposes of this Agreement,
the term "Subsidiary" shall mean (i) any corporation, foreign or domestic, in
which the Company directly or indirectly owns 50% or more of the issued and
outstanding voting stock on an "as converted basis" and (ii) any partnership,
foreign or domestic, in which the Company owns a direct or indirect interest
equal to 50% or more of the outstanding equity interests. The term "Company,"
for purposes of this Agreement, means ADAC Laboratories unless the context of
this Agreement implies the inclusion of one or more Subsidiaries of ADAC
Laboratories.
10. EXECUTIVE'S INDEMNITY. Executive shall be entitled to any
indemnification rights granted by the Company generally to its officers as
reflected in the bylaws or Articles of Incorporation of the Company in effect
immediately prior to any Change in Control of the Company. Any subsequent
changes to the bylaws or Articles of Incorporation reducing any such indemnity
previously granted to officers shall not affect the rights of Executive which
arose prior thereto.
11. COSTS OF ENFORCEMENT; INTEREST. In the event Executive must
collect any part or all of the Severance Payment or Fringe Benefits or otherwise
enforces the terms of this Agreement by or
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through a lawyer or lawyers, the Company will pay all costs of such collection
or enforcement, including reasonable legal fees incurred by Executive. In
addition, the Company shall pay to Executive interest on all or any part of the
Severance Payment or the Fringe Benefits that is not paid when due at a rate
equal to the prime rate as announced by Sanwa Bank or its successors from time
to time.
12. AMENDMENT. This Agreement may not be amended without the prior
written consent of both Executive and the Company.
13. NO RIGHT TO CONTINUED EMPLOYMENT. Nothing in this Agreement
shall be deemed to give Executive the right to be retained in the service of the
Company or to deny the Company any right it may have to discharge or demote him
at any time; provided, however, that any termination of employment of Executive,
or any removal of Executive as an executive officer of the Company primarily in
contemplation of a Change in Control shall not be effective to deny Executive
the benefits of this Agreement, including without limitation Sections 1 and 2
hereof. No provision of this Agreement shall in any way limit, restrict or
prohibit Executive's right to terminate employment with the Company or leave his
position as senior executive.
14. SEVERABILITY. The invalidity and unenforceability of any
particular provision of this Agreement shall not affect any other provision
hereof, and this Agreement shall be construed in all respects as if such invalid
or unenforceable provision were omitted.
15. SUCCESSORS.
(a) The Company will require any successor, whether direct or
indirect, by purchase, merger, consolidation or otherwise, to all or
substantially all of the business and/or assets of the Company to expressly
assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place.
(b) This Agreement shall inure to the benefit of, and be
enforceable by, Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If the
Executive dies prior to the receipt of all benefits payable hereunder with
respect to events occurring prior to death, all such benefits shall be paid
pursuant to the last beneficiary designation executed by the Executive and filed
with the Company. If no beneficiary form has been filed with respect to this
Agreement, all such benefits shall be paid to the Executive's estate.
16. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the Company's state of incorporation.
17. TERM. This Agreement shall terminate and become null and void
if, prior to (but not in contemplation of) a Change in Control, Executive ceases
to be employed as an executive officer with either the Company or a Subsidiary.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement, effective as of the day of , 199 .
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ADAC LABORATORIES EXECUTIVE
By
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R. Andrew Eckert
Chief Executive Officer
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(Address)
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