EXHIBIT 10.1
ALLSCRIPTS, INC.
EMPLOYMENT
AGREEMENT
THIS EMPLOYMENT
AGREEMENT, (this
“Agreement” ) is effective as of this 24th day
of April, 2007, by and between Allscripts LLC, a limited liability
corporation organized and existing under the laws of the State of
Delaware, with its principal place of business at 222 Merchandise
Mart Plaza, Chicago, Illinois 60654 ( “Company”
) and Benjamin E. Bulkley ( “Executive”
).
RECITALS
WHEREAS, Company desires to employ Executive as its Chief
Operating Officer; and
WHEREAS, Executive desires to be employed by Company in
the aforesaid capacity.
NOW THEREFORE,
in consideration of the foregoing
premises, of the mutual agreements and covenants contained herein
and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as
follows:
AGREEMENT
Company hereby agrees to employ
Executive, and Executive hereby accepts employment, as Chief
Operating Officer of Company, pursuant to the terms of this
Agreement. Executive shall have the duties and responsibilities and
perform such administrative and managerial services of that
position as are set forth in the bylaws of Company (the
“Bylaws” ) or as shall be delegated or assigned
to Executive by the Chief Executive Officer of Company (the
“CEO” ) from time to time. Executive shall
report to the CEO and carry out his responsibilities hereunder on a
full-time basis for and on behalf of Company; provided that
Executive shall be entitled to devote time to personal investments
and civic and charitable activities, personal education and
development, so long as such activities do not interfere with or
conflict with Executive’s duties hereunder. Notwithstanding
the foregoing, Executive agrees that, during the term of this
Agreement, Executive shall not act as an officer of any entity
other than Company without the prior written consent of
Company.
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2.
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Effective
Date and Term .
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The initial term of
Executive’s employment by Company under this Agreement shall
commence as of April 24, 2007 (the “Effective
Date” ) and shall continue in effect for a term of one
(1) year, unless earlier terminated as provided herein.
Thereafter, the Company may elect to renew this Agreement upon the
expiration of the initial term or any renewal term by providing
written notice of renewal to Executive at least ninety
(90) days prior to the expiration of the then current term. If
such notice is not provided, Executive must notify Company that
Company failed to provide a notice of renewal. If Company does not
cure such failure within five (5) business days, this
Agreement will terminate at the expiration of the then current
term. If
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Company elects not to renew this Agreement at
the end of the initial term or any renewal term, such nonrenewal
shall be treated as a termination of the Employment Period without
cause by Company for the limited purpose of determining the
payments and benefits available to Executive (i.e., Executive shall
be entitled to the severance/benefits set forth in
Section 4.5.1). If Executive elects not to renew this
Agreement, the same shall not constitute a termination of the
Employment Period without cause and Executive shall be entitled to
receive the severance/benefits set forth in Section 4.5.5. As
used herein, the term “Employment Period” shall
mean the period from the Effective Date until the termination of
the Agreement (i) for non-renewal pursuant to this
Section 2, or (ii) pursuant to Section 4
herein.
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3.
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Compensation and Benefits
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In consideration for the services
Executive shall render under this Agreement, Company shall provide
or cause to be provided to Executive the following compensation and
benefits:
3.1 Base Salary
. During the Employment
Period, Company shall pay to Executive an annual base salary at a
rate of four hundred thousand dollars ($400,000) per annum, subject
to all appropriate federal and state withholding taxes, which base
salary shall be payable in accordance with Company’s normal
payroll practices and procedures. Executive’s base salary
shall be reviewed annually prior to the beginning of each Fiscal
Year (as defined below) during the Employment Period by the CEO or
the Board of Directors of Company (the “Board”
), or a committee of the Board, and may be increased in the sole
discretion of the CEO, Board, or such committee of the Board, based
on Executive’s performance during the preceding Fiscal Year.
For purposes of this Agreement, the term “Fiscal
Year” shall mean the fiscal year of the Company,
commencing on January 1 of each year and ending on
December 31. Executive’s base salary, as such base
salary may be increased annually hereunder, is hereinafter referred
to as the “Base Salary.” After Executive has
been employed for a period of six (6) months by the Company,
the CEO shall review the performance of Executive and the Company
and determine if any adjustment in said salary is merited, in the
sole discretion of the CEO.
3.2 Performance Bonus
. Executive shall be
eligible to receive a cash bonus in accordance with this
Section 3.2. Payment of the Performance Bonus, if any, will be
subject to the sole discretion of the CEO, Board or a committee of
the Board, and the amount of any such Performance Bonus will be
determined by, and based upon criteria selected by, the CEO, Board
or such committee. Based upon the foregoing exercise of discretion,
Executive’s target Performance Bonus, if any, shall be 50% of
his/her salary, but may, based on performance, exceed such amount.
The Performance Bonus shall be payable on or before April 30
of the year immediately succeeding the Fiscal Year for which such
Performance Bonus was earned; provided, however, that if the
applicable Company (or Parent) objectives are based upon
Company’s (or Parent’s) annual audited financial
statements, and if, on April 30 of the applicable year such
financial statements have not yet been issued, the Performance
Bonus, if any, shall be payable promptly upon the issuance of such
financial statements. Notwithstanding the foregoing, Company agrees
to pay Executive the amount of Fifty Thousand Dollars ($50,000) as
the minimum bonus with respect to his employment with the Company
during 2007 at such time as Performance Bonuses are paid for said
year in the manner set forth above. After Executive has been
employed for a period of six (6) months by the Company, the
CEO shall
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review the performance of Executive and the
Company and determine if any adjustment in said minimum bonus is
merited, in the sole discretion of the CEO.
3.3 Benefits . During the Employment
Period and as otherwise provided hereunder, Executive shall be
entitled to the following:
3.3.1 Vacation . Executive shall be entitled to
twenty (20) business days per Fiscal Year of paid vacation,
such vacation time not to be cumulative ( i.e. , vacation
time not taken in any Fiscal Year shall not be carried forward and
used in any subsequent Fiscal Year).
3.3.2 Participation in Benefit Plans .
Executive shall be entitled to health and/or dental benefits,
including immediate coverage for Executive and his eligible
dependents, which are generally available to Company’s senior
executive employees and as provided by Company in accordance with
its group health insurance plan coverage. In addition, Executive
shall be entitled to participate in any profit sharing plan,
retirement plan, group life insurance plan or other insurance plan
or medical expense plan maintained by the Company for its senior
executives generally, in accordance with the general eligibility
criteria therein.
3.3.3 Physical Examination . Executive shall be
entitled to receive reimbursement for the cost of one general
physical examination per twelve (12) month period during the
term of the Agreement from a physician chosen by Executive in his
reasonable discretion.
3.3.4 Perquisites . Executive shall be entitled
to such other benefits and perquisites that are generally available
to Company’s senior executive employees and as provided in
accordance with Company’s plans, practices, policies and
programs for senior executive employees of Company.
3.3.5 Indemnification . Executive shall be
entitled to indemnification (including immediate advancement of all
legal fees with respect to any claim for indemnification) and
directors’ and officers’ insurance coverage, to the
extent made available to other senior executives, in accordance
with the Bylaws and all other applicable policies and procedures of
Company.
3.4 Expenses .
Company shall reimburse Executive
for proper and necessary expenses incurred by Executive in the
performance of his duties under this Agreement from time to time
upon Executive’s submission to Company of invoices of such
expenses in reasonable detail and subject to all standard policies
and procedures of Company with respect to such expenses. In
addition, Executive shall be reimbursed for expenses associated
with his relocation to the Chicago area as set forth on Appendix
A.
3.5 Stock Awards
. Executive shall be
eligible to participate in any applicable stock bonus, stock
option, or similar plan implemented by Company and generally
available to its senior executive employees, including, without
limitation, Company’s Amended and Restated 1993 Stock
Incentive Plan approved by the Board and Company’s
shareholders on or about June 7, 1999 (the
“Plan” ) for the grant of options to Executive
as approved by the Board. Executive will receive restricted shares
of Company stock with a value of $600,000. The award of these
shares is subject to the approval of Company’s Compensation
Committee, at its next scheduled
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meeting subsequent to the execution of this
agreement. Therefore the number of shares will not be determined
until the grant date. The shares will vest over a 4 year period and
be subject to a separate agreement that is customary for such
grants.
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4.
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Termination of the Agreement Prior To the
Expiration .
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This Agreement and the Employment
Period of Executive may be terminated at any time as follows (the
effective date of such termination hereinafter referred to as the
“Termination Date” ):
4.1 Termination upon Death or
Disability of Executive .
4.1.1 This Agreement and the Employment Period shall
terminate immediately upon the death of Executive. In such event,
all rights of Executive and/or Executive’s estate (or named
beneficiary) shall cease except for the right to receive payment of
the amounts set forth in Section 4.5.4 of the
Agreement.
4.1.2 Company may terminate this Agreement and the
Employment Period upon the disability of Executive. For purposes of
this Agreement, Executive shall be deemed to be
“disabled” if Executive, as a result of illness or
incapacity, shall be unable to perform substantially his required
duties for a period of three (3) consecutive months or for any
aggregate period of three (3) months in any six (6) month
period. In the event of a dispute as to whether Executive is
disabled, Company may refer Executive to a licensed practicing
physician of Company’s choice, and Executive agrees to submit
to such tests and examination as such physician shall deem
appropriate to determine Executive’s capacity to perform the
services required to be performed by Executive hereunder. In such
event, the parties hereby agree that the decision of such physician
as to the disability of Executive’s shall be final and
binding on the parties. Any termination of the Agreement under this
Section 4.1.2 shall be effected without any adverse affect on
Executive’s rights to receive benefits under any disability
policy of Company, but shall not be treated as a termination
without cause.
4.2 Termination by Company for
Cause . Company may
terminate this Agreement and the Employment Period for Cause (as
defined herein) upon written notice to Executive, which termination
shall be effective on the date specified by Company in such notice;
provided however, that Executive shall have a period of ten
(10) days (or such longer period not to exceed 30 days as
would be reasonably required for Executive to cure such action or
inaction) after the receipt of the written notice from Company to
cure the particular action or inaction, to the extent a cure is
possible. For purposes of this Agreement, the term
“Cause” shall mean:
4.2.1 The willful or grossly negligent failure by
Executive to perform his duties and obligations hereunder in any
material respect, other than any such failure resulting from the
disability of Executive;
4.2.2 Executive’s conviction of a crime or
offense involving the property of Company, or any crime or offense
constituting a felony or involving fraud or moral turpitude;
provided that, in the event that Executive is arrested or indicted
for a crime or offense related to any of the foregoing, then
Company may, at its option, place Executive on paid leave of
absence, pending the final outcome of such arrest or
indictment;
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4.2.3 Executive’s violation of any law, which
violation is materially and demonstrably injurious to the
operations or reputation of Company; or
4.2.4 Executive’s material violation of any
generally recognized policy of Company, Executive’s refusal
to follow the lawful directions of the Board, or Executive’s
insubordination to his supervisor.
Notwithstanding the foregoing, any
notice and lapse of time period provided in this Section 4.2
shall not be required with respect to any event or circumstance
which is the same or substantially the same as an event or
circumstance with respect to which notice and an opportunity to
cure has been given within the previous six
(6) months.
4.3 Termination without
Cause . Either party
may terminate this Agreement and the Employment Period without
cause upon thirty (30) days prior written notice to the other
party. If Company elects not to renew this Agreement at the end of
the initial term or any renewal term, such nonrenewal shall be
treated as a termination of the Employment Period without cause by
Company for the limited purpose of determining the payments and
benefits available to Executive (i.e., Executive shall be entitled
to the severance/benefits set forth in
Section 4.5.1).
4.4 Termination by Executive
for Constructive Discharge .
4.4.1 Executive may terminate this Agreement and the
Employment Period, in accordance with the process set forth below,
a result of a Constructive Discharge. For purposes of this
Agreement “Constructive Discharge” shall
mean:
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(i)
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a failure of
Company to meet its obligations in any material respect under this
Agreement, including, but not limited to, any reduction in or
failure to pay the Base Salary;
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(ii)
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a material
diminution in or other substantial adverse alteration in the nature
or scope of Executive’s responsibilities with
Company;
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(iii)
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Executive has
been asked to relocate his principal place of business to a
location that is more than fifty (50) miles from
Company’s offices located in Chicago, Illinois; or
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(iv)
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there has been
a Change of Control of Company.
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4.4.2 For purposes of this Agreement, a
“Change of Control” shall mean any one of the
following events (references to “shares” or
“common stock” shall be deemed to include the
membership interests of Company):
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(i)
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the acquisition
by any person or group of beneficial ownership of stock possessing
more than thirty percent (30%) of the outstanding securities
of Company which generally entitle the holder thereof to vote for
the election of directors ( “Voting Power” ),
except that (a) no such person or group shall be
deemed to own beneficially (1) any securities acquired
directly from Company pursuant to a written agreement with Company,
or (2) any
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securities held
by the Company or a subsidiary of Company (
“Subsidiary” ), or any employee benefit plan (or
related trust) of Company or a Subsidiary; and (b) no
Change in Control shall be deemed to have occurred solely by reason
of any such acquisition by a corporation with respect to which,
after such acquisition, more than sixty percent (60%) of the
then outstanding shares of common stock of such corporation and the
Voting Power of such corporation are then beneficially owned,
directly or indirectly, by the persons who were the beneficial
owners of the stock and Voting Power of Company immediately before
such acquisition, in substantially the same proportions as their
ownership immediately before such acquisition; or
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(ii)
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the individuals
who constitute the Board as of the date of this Agreement (the
“Incumbent Board” ) cease for any reason other
than their deaths to constitute at least a majority of the Board;
provided that any individual who becomes a director after the date
of this Agreement whose election or nomination for election by
Company’s stockholders was approved by a vote of at least
two-thirds (2/3) of the directors then comprising the
Incumbent Board shall be considered, for purposes of this section,
as though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial
assumption of office is in connection with an actual or threatened
election contest relating to the election of the directors of
Company (as such terms are used in Rule 14a-11 under the 1934 Act);
or
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(iii)
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Company
effects: (a) a merger, reorganization or consolidation
of Company with respect to which the individuals and entities who
were the respective beneficial owners of the shares of common stock
and Voting Power of Company immediately before such merger,
reorganization or consolidation do not, immediately after such
merger, reorganization or consolidation, beneficially own, directly
or indirectly, more than sixty percent (60%) of, respectively,
the then outstanding shares of common stock and the Voting Power of
the corporation resulting from such merger, reorganization, or
consolidation; (b) a liquidation or dissolution of
Company; or (c) a sale or other disposition of all or
substantially all of the assets of Company.
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4.4.3 For purpose of the foregoing definition, the
terms “beneficially owned” and “beneficial
ownership” and “person” shall have the meanings
ascribed to them in SEC rules 13d-5(b) under the 1934 Act, and
“group” means two or more persons acting together in
such a way to be deemed a person for purposes of Section 13(d)
of the 1934 Act.
4.4.4
In the event of a
Constructive Discharge other than as a result of a Change in
Control, Executive shall have the right to terminate this Agreement
and receive the benefits set forth in Section 4.5.1 below,
upon delivery of written notice to Company no later than the close
of business on the sixtieth (60 th
) day following
the effective date of a Constructive Discharge; provided, however,
that such termination shall not be effective until the expiration
of ten (10)
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days after receipt by Company of
such written notice and Company has not cured such Constructive
Discharge within the 10-day period. If Company so effects a cure,
the Constructive Discharge notice shall be deemed rescinded and of
no force or effect. Notwithstanding the foregoing, such notice and
lapse of time shall not be required with respect to any event or
circumstance which is the same or substantially the same as an
event or circumstance with respect to which notice and an
opportunity to cure has been given within the previous six
(6) months. The effective date of a Constructive Discharge
shall be: (i) in the event of a Constructive Discharge
under Section 4.4.1(i) or (ii), the effective date of the
event giving rise to the Constructive Discharge; or (ii)
in the event of a Constructive Discharge under
Section 4.4.1(iii), the date on which Executive receives
notice of the request to relocate.
4.4.5 In the event of a Constructive Discharge as a
result of a Change of Control, Executive shall have the right to
terminate this Agreement and receive the benefits set forth in
Section 4.5.2 upon delivery of written notice to Company no
later than twelve (12) months following the effective date of
the Change of Control.
4.5 Rights upon Termination . Upon
termination of this Agreement and the Employment, the following
shall apply:
4.5.1 Termination by Company Without Cause or for
Constructive Discharge . If Company terminates the Employment
Period without Cause, or if Executive terminates the Employment
Period as a result of a Constructive Discharge, Executive shall be
entitled to receive payment of any Base Salary amounts
