**Exhibit 10.4.3**

** **

**SECONDAMENDMENT TO**

**EMPLOYMENTAGREEMENT**

 

THIS SECONDAMENDMENT TO EMPLOYMENT AGREEMENT (this “Amendment”) is entered into as of this3rd day of October, 2005 by and between A.D.A.M., Inc., a Georgiacorporation (the “Company”) and Kevin S. Noland, an individual resident of theState of Georgia (“Employee”).

 

**RECITALS**

 

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

 

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

 

                NOW, THEREFORE, in consideration of the foregoingRecitals and the mutual agreements and covenants contained herein, and forother good and valuable consideration, the receipt and sufficiency of whichhereby are acknowledged, the parties hereto hereby agree as follows:

 

1.             Section 2 of the Original EmploymentAgreement is hereby deleted in its entirety and replaced with the followinglanguage:

 

“2.           Term.  The Employee’s term of employment pursuant tothis Agreement shall commence on the date hereof and shall continueindefinitely until terminated in accordance with this Agreement.  Subject to the terms of Section 6, either theCompany or Employee may terminate Employee’s employment under this Agreement atany time by notice to the other. Notwithstanding the foregoing, Employee agrees that he will notterminate his employment upon less than sixty (60) days’ prior written noticeunless such termination is With Good Reason (as hereinafter defined). Employeeacknowledges and agrees that after the Company’s receipt of any notice oftermination from the Employee, the Company may, at its sole option, elect anearlier effective date for the termination of Employee’s employment by givingwritten notice of such earlier date to Employee at any time prior to the dateof termination initially established by Employee. Company agrees that Employee’selection to terminate his employment hereunder shall not constitute asufficient basis upon which the Company can terminate Employee’s employmentWith Cause (as hereinafter defined).”

 

2.             Section 6 of the OriginalEmployment Agreement is hereby deleted in its entirety and replaced with thefollowing language:

 

“6.           Termination ofEmployment.

 

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

 

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

 

(b)           If Companyterminates Employee’s employment hereunder Without Cause (as hereinafterdefined), the Company shall: (i) continue to pay Employee’s annual base salary(as in effect on the date Employee’s employment so terminates) for atwenty-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 theCOBRA premiums necessary for Employee to continue the same medical coverageEmployee carried while an active employee provided that the Company shall notbe required to make more than the maximum number of payments allowed underCOBRA.

 

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

 

(d)           “Change of Control”means the occurrence of any of the following events: (i) any person, within themeaning 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 themeaning of Exchange Act Rule 13d-5, acquires more than fifty percent (50%) invoting power of the Company’s equity securities; (ii) the Board of Directors ofthe Company as it is constituted on any day (the “Incumbent Board”) changes sothat on the following day (which day shall be considered the day upon which theChange in Control occurs) individuals who constitute the Incumbent Board ceasefor any reason other than their deaths to constitute at least a majority of theBoard of Directors, provided that any individual becoming a director subsequentto the date hereof whose election or nomination for election was consented toor approved by a majority of the Incumbent Board shall be, for purposes of thisParagraph (ii), considered as though such person were a member of the IncumbentBoard; (iii) there is a reorganization (other than a mere change in identity,form, or place of organization of the Company, however effected), merger orconsolidation of the Company, or any other transaction, with one or morebusiness entities or persons as a result of which the stock of the Company isexchanged for or converted into cash or property or securities not issued bythe Company; or (iv) there is a sale of all or substantially all of the assetsof the Company to any person or business entity.

 

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(e)           “With Cause” meansthe termination of employment resulting from: (i) any act or omission whichconstitutes a material breach by Employee of his obligations under thisAgreement; (ii) the commission by Employee of a felony or any crime involvingmoral turpitude, fraud or dishonesty; (iii) the perpetration by Employee of anyact of dishonest whether relating to the Company, the Company’s employee orotherwise; (iv) the use of illegal drugs by the Employee, or drunkenness orsubstance abuse by the Employee which interferes with the performance of hisduties hereunder; (v) gross incompetence on the part of Employee in theperformance of his duties hereunder; (vi) the issuance of a final consentdecree, cease and desist or similar order against Employee by a regulatoryagency relating to violations or alleged violations of any federal or state lawor 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 theexercise by Employee of good faith business judgment) which materially impairsthe financial condition or business reputation of the Company.

 

(f)            “Without Cause”means the termination of employment by Company resulting from any reason otherthan 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 resultof: (i) the assignment to Employee of any duties materially and adverselyinconsistent with the Employee’s position as specified in Section 1 hereof (orsuch other position to which he may be promoted), including status, offices,responsibilities or persons to whom the Employee reports as contemplated underSection 1 of this Agreement, or any other action by Company which results in amaterial adverse change in such position, status, offices, titles, or responsibilities;(ii) relocation of the Company’s principal executive offices outside of themetropolitan Atlanta area as the CEO or Board of Directors of the Company maydesignate, and Employee elects not to accept such reassignment by notifying theCompany in writing within 45 days of such reassignment; or (iii) any othermaterial breach of this Agreement by Company, including the failure to payEmployee on a timely basis the amounts to which he is entitled under thisAgreement, after written notification from the Employee of such breach, settingforth in detail the matters involved, and the Company’s failure to cure theproblem 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 anyreason other than those enumerated in subsection (g) above.”

 

3.             Section 11 of the OriginalEmployment Agreement is hereby deleted in its entirety and replaced with thefollowing language:

 

“11.         Non-Solicitationof Customers.  The Employee will, forso long as he is employed by the Company and for a period of one (1) year aftertermination of his employment, refrain from soliciting, or attempting tosolicit, directly or by assisting others, any business from any of the customers,including actively sought prospective customers, with whom the Employee hadmaterial contact within the last twelve 

 

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months of Employee’semployment hereunder, for purposes of providing products or services that aresimilar to or competitive with those provided by the Company, if the Company isalso then still engaged in such business.”

 

4.             Section 12 of the OriginalEmployment Agreement is hereby deleted in its entirety and replaced with thefollowing language:

 

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

 

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

 

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

 

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**INWITNESS WHEREOF**,the parties hereto have executed this Amendment as of the date first writtenabove.

 
|   |   | **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                                             |

 

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