Exhibit 10.11
SEVERANCE
AGREEMENT
This Severance Agreement
(“Agreement”) is made as of March 6, 2009 by and
between I-many, Inc., a Delaware corporation having its principal
place of business at 399 Thornall Street Edison, New Jersey 08837
(the “Company”), and Kevin M. Harris, a resident of
Moorestown, New Jersey (“Executive”).
WHEREAS, Executive is currently employed by the Company
and is party to an employment agreement dated June 16, 2003,
as amended January 26, 2006 (the “Original
Agreement”), which provides for certain benefits in the event
of the termination of Executive’s employment and a change in
control of the Company;
WHEREAS, the Company desires to continue receiving the
services of Executive, and Executive desires to continue his
employment with the Company, and
WHEREAS, the Board of Directors of the Company (the
“Board of the Directors”) has determined that it is in
the best interest of the Company and its shareholders to revise the
circumstances under which Executive will receive certain payments
and/or benefits upon the separation of his employment with the
Company and upon a change in control of the Company.
NOW, THEREFORE,
in consideration of the mutual
covenants and promises contained herein and other good and valuable
consideration, the receipt and sufficiency of which are
acknowledged by the parties, the Company and Executive agree as
follows:
1. Termination of Original
Agreement . The Original Agreement is hereby terminated in
its entirety, with no further effect, and superseded by this
Agreement.
2. Employment Term.
Executive’s employment with the Company shall be at-will and
Executive expressly acknowledges that his employment may be
terminated at the discretion of either party at any time and for
any reason. During the course of Executive’s employment with
the Company, Executive agrees to devote his full business time,
energy, attention, and skill to such employment and agrees not to,
directly or indirectly, engage or participate in, or become
employed by, or become a director, officer, or partner of, or
provide services for compensation to or in connection with, any
business activity that would be considered competitive with the
business of the Company or which conflicts or interferes with the
performance of Executive’s obligations under this Agreement
without the express written consent of the Board of
Directors.
3. Termination of
Employment.
3.1 Effects of
Termination.
(a) Termination by the
Company—Other than For Cause. Subject to the terms and
conditions hereof, if: (1) Executive’s employment is
terminated solely upon the discretion of the Company pursuant to
any reason other than for Cause or due to Death or Permanent
Disability, as those terms are defined below; (2) Executive
resigns his employment no more than ninety (90) days after a
fundamental reduction in Executive’s duties and
responsibilities or a material failure to pay Executive
compensation when it is due; (3) Executive resigns his
employment no more than ninety (90) days after the Company
requires him to relocate his principal work location more than 75
miles from its current location of Edison, NJ or his home in
Moorestown, NJ; or (4) Executive resigns his employment no
more than ninety (90) days after Executive’s annual
salary is reduced by 20% (except a temporary reduction that is
imposed proportionately on all members of the Company’s
executive management team (EMT)), Executive shall be entitled to
the following:
(i) Salary and Accrued
Vacation. Salary through the date of termination, accrued
vacation earned but not yet paid through the date of termination,
and any earned but unpaid bonus and commissions, the availability
and pro rata calculation of which shall be determined solely at the
discretion of the Board of Directors.
(ii) Severance. The Company
shall pay Executive severance equal to either (A) if Executive
has received or is entitled to the change of control benefits set
forth in section 4(a) hereof, then nine (9) months of
Executive’s annualized base salary in effect as of the date
of termination (or, if applicable, Executive’s greatest
annualized base salary in effect within 90 days prior to his
resignation), or (B) otherwise, twelve (12) months of
Executive’s annualized base salary in effect as of the date
of termination (or, if applicable, Executive’s greatest
annualized base salary in effect within 90 days prior to his
resignation), in either case less applicable deductions and
withholdings, payable in accordance with the Company’s usual
payroll practices.
(iii) Medical Benefits. The
Company shall continue to maintain Executive as a participant in
its health insurance plan as required and/or permitted under the
Consolidated Omnibus Budget Reconciliation Act of 1985 (often
referred to as “COBRA”) and insofar as elected by
Executive, for up to twelve (12) months following termination
of employment, but only until Executive accepts subsequent
employment that offers health insurance, the Company shall
reimburse Executive, on a monthly basis, for the difference between
his COBRA expense and the amount paid by a Company employee for the
same coverage.
(b) General Release . The
Company or its successor shall not become obligated to make any
severance payment or supplemental medical benefits payment under
Sections 3.1(a)(ii) and (iii) or Sections 3.1(b)(ii) and
(iii) unless Executive signs a general release of claims
against the Company or its successor substantially in the form of
the agreement and general release attached at Exhibit A and
continues to comply with the terms and conditions of agreement and
general release. Such agreement and general release shall include a
mutual non-disparagement covenant and a re-affirmation of
Executive’s obligations under his Nondisclosure and
Developments Agreement with the Company.
(c) Termination by the
Company—For Cause. The Company may terminate
Executive’s employment for Cause: (i) at any time upon
ten (10) days’ written notice without cure by the
Executive, or pay of an equivalent amount without such notice, in
the case of (A) or (B) of this paragraph below; and
(ii) without prior written notice, in the case of (C) and
(D) of this paragraph below. If the Company terminates
Executive’s employment for Cause, it shall have no further
obligations to Executive under this Agreement except for the
payment of: (i) accrued and unpaid salary and unused vacation
time, through the effective date of termination; (ii) unpaid
expenses reasonably incurred by the Executive and submitted in
compliance with Company policies; and (iii) earned but not yet
paid bonus and commissions, the availability and pro rata
calculation of which shall be
