Exhibit 10.4.3


 


SECOND
AMENDMENT TO


EMPLOYMENT
AGREEMENT


 


THIS SECOND
AMENDMENT TO EMPLOYMENT AGREEMENT (this “Amendment”) is entered into as of this
3rd day of October, 2005 by and between A.D.A.M., Inc., a Georgia
corporation (the “Company”) and Kevin S. Noland, an individual resident of the
State of Georgia (“Employee”).


 


RECITALS


 


                WHEREAS, the Company and Employee entered into that
certain Employment Agreement, dated as of February 21, 2002, as amended by that
certain First Amendment to Employment Agreement dated March 14, 2005 (the “Original
Employment Agreement”); and


 


                WHEREAS, the parties wish to make certain amendments
to certain provisions of the Original Employment Agreement and to memorialize
such amendments hereby;


 


                NOW, THEREFORE, in consideration of the foregoing
Recitals and the mutual agreements and covenants contained herein, and for
other good and valuable consideration, the receipt and sufficiency of which
hereby are acknowledged, the parties hereto hereby agree as follows:


 


1.             Section 2 of the Original Employment
Agreement is hereby deleted in its entirety and replaced with the following
language:


 


“2.           Term.  The Employee’s term of employment pursuant to
this Agreement shall commence on the date hereof and shall continue
indefinitely until terminated in accordance with this Agreement.  Subject to the terms of Section 6, either the
Company or Employee may terminate Employee’s employment under this Agreement at
any time by notice to the other. 
Notwithstanding the foregoing, Employee agrees that he will not
terminate his employment upon less than sixty (60) days’ prior written notice
unless such termination is With Good Reason (as hereinafter defined). Employee
acknowledges and agrees that after the Company’s receipt of any notice of
termination from the Employee, the Company may, at its sole option, elect an
earlier effective date for the termination of Employee’s employment by giving
written notice of such earlier date to Employee at any time prior to the date
of termination initially established by Employee. Company agrees that Employee’s
election to terminate his employment hereunder shall not constitute a
sufficient basis upon which the Company can terminate Employee’s employment
With Cause (as hereinafter defined).”


 


2.             Section 6 of the Original
Employment Agreement is hereby deleted in its entirety and replaced with the
following language:


 


“6.           Termination of
Employment.


 


(a)           If Employee’s
employment hereunder is terminated (i) by Company With Cause, (ii) by Company
pursuant to Section 5 or (iii) by Employee Without Good Reason (other than
within twelve months following a Change of Control), all 


 

















 


obligations of
Company to provide compensation and benefits under this Agreement shall cease,
and Employee shall have no claim against the Company for damages or otherwise
by reason of such termination. Company’s election to terminate Employee’s
employment With Cause shall be without prejudice to any remedy the Company may
have against Employee for the breach or non-performance of any of the provisions
of this Agreement.


 


(b)           If Company
terminates Employee’s employment hereunder Without Cause (as hereinafter
defined), the Company shall: (i) continue to pay Employee’s annual base salary
(as in effect on the date Employee’s employment so terminates) for a
twenty-four (24) month period under Section 3(a) of this Agreement; and (ii)
for a twenty-four (24) month period following Employee’s termination, pay the
COBRA premiums necessary for Employee to continue the same medical coverage
Employee carried while an active employee provided that the Company shall not
be required to make more than the maximum number of payments allowed under
COBRA.


 


(c)           If Employee
voluntarily resigns (A) With Good Reason or (B) within twelve months following
a Change of Control (for any or no reason), then, in either such case, the
Company shall: (i) not later than ten business days following the date of
termination of employment, pay to Employee a lump sum cash amount equal to
twice his annual base salary (as in effect on the date Employee’s employment so
terminates); and (ii) for a twenty-four (24) month period following Employee’s
termination, pay the COBRA premiums necessary for Employee to continue the same
medical coverage Employee carried while an active employee provided that the
Company shall not be required to make more than the maximum number of payments
allowed under COBRA.


 


(d)           “Change of Control”
means the occurrence of any of the following events: (i) any person, within the
meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended
(the “Exchange Act”), other than Employee, or any group of persons, within the
meaning of Exchange Act Rule 13d-5, acquires more than fifty percent (50%) in
voting power of the Company’s equity securities; (ii) the Board of Directors of
the Company as it is constituted on any day (the “Incumbent Board”) changes so
that on the following day (which day shall be considered the day upon which the
Change in Control occurs) individuals who constitute the Incumbent Board cease
for any reason other than their deaths to constitute at least a majority of the
Board of Directors, provided that any individual becoming a director subsequent
to the date hereof whose election or nomination for election was consented to
or approved by a majority of the Incumbent Board shall be, for purposes of this
Paragraph (ii), considered as though such person were a member of the Incumbent
Board; (iii) there is a reorganization (other than a mere change in identity,
form, or place of organization of the Company, however effected), merger or
consolidation of the Company, or any other transaction, with one or more
business entities or persons as a result of which the stock of the Company is
exchanged for or converted into cash or property or securities not issued by
the Company; or (iv) there is a sale of all or substantially all of the assets
of the Company to any person or business entity.


 

















 


(e)           “With Cause” means
the termination of employment resulting from: (i) any act or omission which
constitutes a material breach by Employee of his obligations under this
Agreement; (ii) the commission by Employee of a felony or any crime involving
moral turpitude, fraud or dishonesty; (iii) the perpetration by Employee of any
act of dishonest whether relating to the Company, the Company’s employee or
otherwise; (iv) the use of illegal drugs by the Employee, or drunkenness or
substance abuse by the Employee which interferes with the performance of his
duties hereunder; (v) gross incompetence on the part of Employee in the
performance of his duties hereunder; (vi) the issuance of a final consent
decree, cease and desist or similar order against Employee by a regulatory
agency relating to violations or alleged violations of any federal or state law
or regulation governing the conduct of the business of the Company; or (vii)
any other act or omission (other than an act or omission resulting from the
exercise by Employee of good faith business judgment) which materially impairs
the financial condition or business reputation of the Company.


 


(f)            “Without Cause”
means the termination of employment by Company resulting from any reason other
than those enumerated in subsection (e) above or Section 5 of this Agreement.


 


(g)           “With Good Reason”
means the Employee’s termination of his employment with the Company as a result
of: (i) the assignment to Employee of any duties materially and adversely
inconsistent with the Employee’s position as specified in Section 1 hereof (or
such other position to which he may be promoted), including status, offices,
responsibilities or persons to whom the Employee reports as contemplated under
Section 1 of this Agreement, or any other action by Company which results in a
material adverse change in such position, status, offices, titles, or responsibilities;
(ii) relocation of the Company’s principal executive offices outside of the
metropolitan Atlanta area as the CEO or Board of Directors of the Company may
designate, and Employee elects not to accept such reassignment by notifying the
Company in writing within 45 days of such reassignment; or (iii) any other
material breach of this Agreement by Company, including the failure to pay
Employee on a timely basis the amounts to which he is entitled under this
Agreement, after written notification from the Employee of such breach, setting
forth in detail the matters involved, and the Company’s failure to cure the
problem resulting in such breach within fifteen (15) days thereafter.


 


(h)           “Without Good Reason”
means the Employee’s termination of his employment with the Company for any
reason other than those enumerated in subsection (g) above.”


 


3.             Section 11 of the Original
Employment Agreement is hereby deleted in its entirety and replaced with the
following language:


 


“11.         Non-Solicitation
of Customers.  The Employee will, for
so long as he is employed by the Company and for a period of one (1) year after
termination of his employment, refrain from soliciting, or attempting to
solicit, directly or by assisting others, any business from any of the customers,
including actively sought prospective customers, with whom the Employee had
material contact within the last twelve 


 

















 


months of Employee’s
employment hereunder, for purposes of providing products or services that are
similar to or competitive with those provided by the Company, if the Company is
also then still engaged in such business.”


 


4.             Section 12 of the Original
Employment Agreement is hereby deleted in its entirety and replaced with the
following language:


 


“12.         Non-Competition.  Employee expressly covenants and agrees that
during the term of his employment hereunder and for a period of twelve (12)
months after termination of his employment, he will not, directly or
indirectly, seek, obtain, or accept a “Competitive Position” in the “Restricted
Territory” with a “Competitor” of the Company (as such terms are hereafter
defined). For purposes of this Agreement, a “Competitor” of the Company means
any business, individual, partnership, joint venture, association, firm,
corporation or other entity engaged, whose primary business is in the
production, marketing, promotion or distribution of products or services that
are the same as, or similar to, or competitive with, the products or services
that are produced, marketed, promoted, or distributed by Company in connection
with the Company’s Business; a “Competitive Position” means any employment with
any Competitor of the Company whereby Employee has duties for such Competitor
that are similar to those actually performed by him pursuant to the terms hereof;
and the “Restricted Territory” means the United States. Employee acknowledges
and agrees that he has been or will be working within the Restricted Territory
as defined above or has had or will have material contact with customers or
actively sought prospective customers of the Company located within such areas.
The parties agree to review the geographical area included within the
Restricted Territory from time to time at either party’s request in order that
the Restricted Territory may be reformed so that its coverage upon Employee’s
termination will extend only to the geographical area in which the Employee is
working at such time, including any area where any operations performed,
supervised, or assisted in by the Employee are conducted and any area where
customers or actively sought prospective customers of the Company with whom the
Employee had material contact are present. Any reformation to be evidenced only
by written amendment to this Agreement.”


 


5.             This Amendment may be executed in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.


 


6.             Except as set forth above, the
Original Employment Agreement shall continue as set forth immediately prior to
the effectuation of the amendments set forth herein, and by its execution
hereof, each of the parties hereto hereby confirms its agreement to the terms
of the Original Employment Agreement as amended hereby.


 

















 


IN
WITNESS WHEREOF,
the parties hereto have executed this Amendment as of the date first written
above.


 


	
   

  	
   

  	
  THE
  COMPANY

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  A.D.A.M.,
  INC.

  
	
   

  	
   

  	
  By: /s/ Francis J. Tedesco

  
	
   

  	
   

  	
  Francis J. Tedesco

  
	
   

  	
   

  	
  Chairman, Compensation Committee of the Board of
  Directors

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  EXECUTIVE

  
	
   

  	
   

  	
  /s/ Kevin S. Noland

  
	
   

  	
   

  	
  Kevin S. Noland