Exhibit 10.9
HEALTHPORT
INCORPORATED
First Amendment to Employment
Agreement
Dated: December 30, 2008
WHEREAS, HealthPort Incorporated, as successor to
Companion Technologies Corporation, (the “ Company
”), and Michael J. Labedz (“ Executive ”)
entered into an Executive Employment Agreement, dated
December 29, 2006 (the “ Agreement ”);
and
WHEREAS, the Company and Executive now wish to amend the
Agreement to comply with the requirements of Section 409A of
the Internal Revenue Code of 1986, as amended (the “
Code ”), and the treasury regulations and other
official guidance promulgated thereunder in accordance with the
provisions of Section 15(b) of the Agreement.
NOW, THEREFORE,
in consideration of the foregoing,
of the mutual promises contained herein and of other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree to amend the
Agreement as set forth herein.
FIRST : The following provision shall be added as a
new Section 16 to the Agreement:
“16. Section 409A
.
(a) The intent of the parties is
that payments and benefits under this Agreement comply with
Section 409A of the Internal Revenue Code, and the rules and
regulations promulgated thereunder (‘ Code
Section 409A ’), and, accordingly, to the maximum
extent permitted, this Agreement shall be interpreted to be in
compliance therewith. To the extent that any provision hereof is
modified in order to comply with Code Section 409A, such
modification shall be made in good faith and shall, to the maximum
extent reasonably possible, maintain the original intent and
economic benefit to the parties hereto of the applicable provision
without violating the provisions of Code Section 409A. In no
event whatsoever shall the Company be liable for any additional
tax, interest or penalty that may be imposed on the Executive by
Code Section 409A or damages for failing to comply with Code
Section 409A.
(b) Notwithstanding any other
payment schedule provided herein to the contrary, if the Executive
is deemed on the date of termination to be a ‘specified
employee’ within the meaning of that term under Code
Section 409A(a)(2)(B), then each of the following shall
apply:
(i) With regard to any payment that
is considered deferred compensation under Code Section 409A
payable on account of a ‘separation from service,’ such
payment shall be made on the date which is the earlier of
(A) the expiration of the six (6)-month period measured from
the date of such ‘separation from service’ of the
Executive, and (B) the date of the Executive’s death
(the ‘ Delay Period ’) to the extent
1
required under Code
Section 409A. Upon the expiration of the Delay Period, all
payments delayed pursuant to this Section (whether they would have
otherwise been payable in a single sum or in installments in the
absence of such delay) shall be paid to the Executive in a lump
sum, and all remaining payments due under this Agreement shall be
paid or provided in accordance with the normal payment dates
specified for them herein; and
(ii) To the extent that any benefits
to be provided during the Delay Period is considered deferred
compensation under Code Section 409A provided on account of a
‘separation from service,’ and such benefits are not
otherwise exempt from Code Section 409A, the Executive shall
pay the cost of such benefits during the Delay Period, and the
Company shall reimburse the Executive, to the extent that such
costs would otherwise have been paid by the Company or to the
extent that such benefits would otherwise have been provided by the
Company at no cost to the Executive, the Company’s share of
the cost of such benefits upon expiration of the Delay Period, and
any remaining benefits shall be reimbursed or provided by the
Company in accordance with the procedures specified
herein.
(c) For purposes of Code
Section 409A, the Executive’s right to receive any
instal
