Unassociated Document


    

      FIRST
        AMENDMENT TO

      EMPLOYMENT
        AGREEMENT

       

      THIS
        FIRST AMENDMENT TO EMPLOYMENT AGREEMENT (the “Amendment”)
        is made
        and entered into as of July 15, 2005, by and between NovaMed Management
        Services, LLC (f/k/a NovaMed Eyecare Services, LLC), a Delaware limited
        liability company (the “Company”),
        and
        Scott T. Macomber (“Employee”).

      


      RECITALS

      


      A.  The
        Company and Employee originally entered into an Employment Agreement dated
        October 16, 2001 (the
        “Existing
        Agreement”).

      


      B.  In
        consideration for the continued employment of Employee, the parties hereto
        desire to amend the terms and conditions of the Existing Agreement, all on
        the
        terms and conditions set forth herein.

      


      NOW,
        THEREFORE,
        in
        consideration of the premises, the mutual covenants of the parties hereinafter
        set forth and other good and valuable consideration, the receipt and sufficiency
        of which are hereby acknowledged, the parties hereto agree as
        follows:

      


      TERMS

      


      1. The
        first
        sentence of Section 2.1 shall be deleted in its entirety and replaced with
        the
        following:

      


      “During
        the Employment Period, the Company will pay Employee a base salary at the
        rate
        of $258,000 per annum (which annual base salary, as increased from time to
        time
        in accordance with this Section
        2.1,
        shall
        be referred to herein as the “Base
        Salary”),
        payable in regular installments in accordance with the Company's general
        payroll
        practices for salaried employees.”

      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      2. Section
        3.3(b) of the Existing Agreement shall be deleted in its entirety and replaced
        with the following:

      


      (b) Except
        as
        described in Section
        3.4
        hereof,
        (i) if
        the
        Employment Period is terminated by the Company without Cause (including a
        termination resulting from the Company’s election not to renew this Agreement
        under Section
        1.1
        hereof) or
        (ii)
        if the Employment Period is terminated by Employee for Locale Reason: (A)
        Employee shall be entitled to receive all items described in Section
        3.3(a)
        above;
        and (B) subject to the conditions hereinafter set forth, Employee shall be
        entitled to receive as severance compensation, the following (collectively,
        the
“Severance
        Pay”):
        (1)
        Employee’s then-current monthly Base Salary hereunder for a period of fifteen
        (15) months (such time period to be hereinafter referred to as the “Severance
        Period” (unless
        modified by Section
        3.4)),
        payable in regular installments in accordance with the Company’s general payroll
        practices for salaried employees; (2) the
        bonus, if any, that Employee would have been entitled under Section
        2.2
        hereof
        at the end of the year during which the termination without Cause or termination
        for Locale Reason occurs had such termination not occurred, which bonus shall
        be
        (a) prorated based on the amount of time that Employee was employed by the
        Company during the year (not including the Severance Period) for which such
        bonus is being calculated, and (b) determined and paid to Employee
        contemporaneously with the determination and payment of bonuses for comparable
        employees of the Company; and (3) continuation of the welfare benefits described
        in Section
        2.3(a)
        for the
        Severance Period, to the extent permissible under the terms of the relevant
        benefit plans. The bonus described in subclause (2) above
        shall not be the “Target Bonus” (as defined in Section
        3.4(b)),
        but
        rather the bonus that would have been payable pursuant to Section
        2.2
        hereof,
        as modified by this Section
        3.3(b).
        Employee’s right to receive Severance Pay hereunder is conditioned upon: (x)
        Employee executing and delivering to the Company a written separation agreement
        and general release of all claims, in form and substance acceptable to the
        Company, which shall among other things, contain a general release by Employee
        of all claims arising out of his employment and termination of employment
        by the
        Company; and (y) Employee’s compliance with all of his obligations which survive
        termination of this Agreement, including without limitation those described
        in
Article
        IV
        below.
        The Severance Pay is intended to be in lieu of all other payments to which
        Employee might otherwise be entitled in respect of his termination without
        Cause
        or termination for Locale Reason. The Company shall have no further obligations
        hereunder or otherwise with respect to Employee’s employment from and after the
        date of termination of employment with the Company for any reason (the
“Termination
        Date”),
        and
        the Company shall continue to have all other rights available hereunder
        (including without limitation, all rights hereunder (including without
        limitation, all rights under Article
        IV
        hereof)
        at law or in equity. As used herein, “Locale
        Reason”
        shall
        mean without the written consent of Employee a relocation by the Company
        of
        Employee’s primary employment location to a location which is more than 50 miles
        from 980 North Michigan Avenue, Suite 1620, Chicago, Illinois. 

      


      3. Section
        3.4(b) of the Existing Agreement shall be deleted in its entirety and replaced
        with the following:

      


      (b) If
        the
        Employment Period is terminated following a Change in Control (i) by the
        Company
        without Cause (including a termination resulting from the Company’s election not
        to renew this Agreement under Section
        1.1 hereof)
        or (ii) by Employee for Good Reason, then subject to the conditions described
        in
Section
        3.4(d)
        below,
        Employee shall be entitled to receive the following as Severance Pay in lieu
        of
        any amounts payable under Section
        3.3:
        (A) one
        hundred fifty percent (150%) times
        the
        sum of Employee’s Base Salary and Target Bonus, payable within 30 days following
        the Termination Date and (B) continuation of the welfare benefits described
        in
Section
        2.3(a)
        for
        eighteen (18) months
        (the “Severance
        Period”)
        to the
        extent permissible under the terms of the relevant benefit plans. For purposes
        of this Agreement, “Target
        Bonus”
        shall
        mean the greater of (x) an amount equal to the bonus that would have been
        payable to Employee following the calendar year in which the Termination
        Date
        occurs pursuant to the Company’s Executive Compensation Plan (the “Executive
        Plan”),
        based
        on attaining one hundred percent (100%) of Employee’s applicable target measure
        established pursuant to the Executive Plan or (y) thirty-five
        percent (35%) of Base Salary. The Target Bonus shall not be adjusted based
        on
        whether the Company anticipates attaining such target measure as of the
        Termination Date, whether the target measure is ultimately attained or whether
        any bonus amounts payable under the Executive Plan would have ultimately
        been
        approved by either the Compensation Committee or the Board.

      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      4. Section
        3.4(c) of the Existing Agreement shall be deleted in its entirety and replaced
        with the following:

      


      (c) If
        the
        Employment Period is terminated following a Change in Control by Employee
        for
        any reason or no reason during the Window Period, then subject to the conditions
        described in Section
        3.4(d)
        below,
        Employee shall be entitled to receive the following as Severance Pay in lieu
        of
        any amounts payable under Section
        3.3:
        (i)
        fifty percent (50%) of the
        product of: (x) one hundred fifty percent (150%); multiplied by (y) the sum
        of
        Employee’s Base Salary and Target Bonus, payable within thirty (30) days
        following the Termination Date and (ii) continuation of the welfare benefits
        described in Section
        2.3(a)
        for nine
        (9) months (the “Severance
        Period”)
        to the
        extent permissible under the terms of the relevant benefit plans.

      


      5. All
        other
        provisions of the Existing Agreement not expressly amended hereby shall continue
        to survive in accordance with their respective terms and
        conditions.

      


      [Signature
        Page to Follow]


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      


      IN
        WITNESS WHEREOF,
        the
        parties have executed this Agreement on the day and year first above
        written.

       

      
        
          
            	 	 	 
	 	COMPANY: 
	 	 
	 	NovaMed
                    Management Services, LLC,
                    a
                    Delaware limited liability company
	 
 	 
 	 
 
	 	By:  	/s/ E.
                    Michele Vickery
	 	
                    
E.
                    Michele Vickery
	 	Executive
                    Vice President Operations


          

        

        
          	 	 	 
	 	 
	 	EMPLOYEE:
	 	 
	 	 
	 
 	 
 	 
 
	 	By:  	/s/
                  Scott T. Macomber
	 	
                  
Scott
                  T. Macomber