Exhibit 10.1 

 

EMPLOYMENT AGREEMENT 

 

This Employment Agreement (“Agreement”) is made as of June 16, 2003 by and between I-many, Inc., a Delaware corporation having its principalplace of business at 399 Thornall Street Edison, New Jersey 08837 (the “Company”), and Kevin Harris, a resident of 805 Fernwood Road Moorsetown, New Jersey 08057 (“Executive”). 

 

WHEREAS, the Company desires to employ Executive, and Executive desires to beemployed by the Company, and 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 formalized the employment relationship pursuant to thisAgreement. 

 

NOW, THEREFORE, in consideration of the mutualcovenants 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 to the follows: 

 

1. Employment 

 

1.1 Position. The Company agrees to employ Executive in the position(s) stated in *Exhibit A* to thisAgreement. Executive accepts employment with the Company in such capacity and agrees to serve the Company faithfully, diligently and to the best of his or her ability pursuant to the responsibilities and goals assigned to Executive by the Presidentand Chief Executive Officer of Company and which are consistent with the Executive’s title and position. During the course of Executive’s employment with the Company, Executive agrees to devote his or her 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, anybusiness 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 ofDirectors. 

 

1.2 Employment Term.Executive’s employment with the Company shall be at will, as described more fully in *Exhibit A*, and, subject to the terms and conditions herein, this Agreement shall be terminable accordingly. 

 

2. Compensation. 

 

2.1 Salary. The Company shall compensate Executive as set forth on*Exhibit A*hereto subject to all standard tax deductions and withholdings. The Base Salary (as defined therein) shall be paid to Executive in accordance with the Company’s normal payroll practices. Executive’s Base Salary may beincreased annually at the discretion of the Board of Directors or the Chief Executive Officer. 

 

2.2 Bonus Plan. During the term of his or her employment, Executive shall be eligible for up to 40% of his annual base salary in annual bonus as part of a discretionary, performance-based bonus program, the terms ofwhich shall be as determined annually by the Board of Directors or a Compensation Committee thereof or the Chief Executive Officer. The performance related bonus shall be subject to all standard deductions and other withholdings. 

 

2.3 Acceleration of Stock Options. If after your employment start date theCompany is consolidated with or merged into another entity (other than a consolidation or merger in which the stockholders of the Company immediately prior to the consolidation or merger own a majority of the issued and outstanding shares of stockof the survivor corporation, or of an entity owning the survivor corporation, immediately after the consolidation or merger); or if the business of the Company is acquired by another entity in an 

acquisition of all or substantially all of the Company’s assets (other than the currently proposed sale of the Company’s life sciences line ofbusiness to Neoforma, Inc.); or an entity acquiring in a transaction or series of related transactions in a three month period from the then-existing stockholders, more than 50% of the Company’s issued and outstanding shares of capital stock(each a “Company Sale”), then One Hundred percent (100%) of the Executive’s unvested options on the date of the Company Sale shall become exercisable in full immediately prior to the closing of such Company Sale, provided that if theBoard of Directors should determine, upon receipt of a written opinion of the Company’s independent public accountants, that give effect to this provision for acceleration would preclude accounting for any proposed accounting for any proposedbusiness combination of the Company with another entity as a pooling of interests, and the Board otherwise desires to approve such a proposed business combination which requires as a condition to the closing of such transaction that it be accountedfor as a pooling of interests, then this provision shall be null and void. 

 

3. Other Benefits. 

 

3.1Benefit Plans. During the term of his or her employment, Executive shall be entitled to participate in the Company’s benefit plans and programs, if any, made available generally to other employees or executives similarly situated with theCompany, including, but not limited to, medical and health care plans, life insurance, disability and a 401(k) plan. 

 

3.2 Vacation. Executive shall be entitled to three (3) weeks of annual vacation, to be accrued and taken in accordance with the vacation policy of theCompany for similarly situated employees or executives, but which in any case may not be carried over from year to year to the extent not taken. In addition, Executive will be entitled to personal days in accordance with Company policy. 

 

3.3 Expenses. The Company shall reimburse Executive for all reasonablebusiness expenses incurred by Executive in connection with, or related to, the performance of the Executive’s duties, responsibilities or services under this Agreement, upon Executive’s presentation to the Company of expense statements,vouchers or other supporting information, in accordance with Company practices. 

 

4. Termination of Employment.

 

4.1 Means of Termination. Subject to the terms and conditions hereof, Executive’s employment shall terminate: 

 

(a) At the discretion of either party at any time for any reason; 

 

(b) At the election of the Company for Cause, as such term is defined herein; or 

 

(c) Upon the death or permanent disability of Executive. As used in thisagreement, the term “permanently disabled” shall mean the inability of the Executive, due to a physical or mental disability, for a period of 90 days, whether or not consecutive, during a 360-day period, to perform the essential functionsof the job, including the services contemplated under this Agreement, with or without reasonable accommodations. A determination of permanent disability shall be made by a physician satisfactory to both the Executive and the Company, *providedthat*, if the Executive and the Company do not agree on a physician, the Executive and the Company shall each select a physician and these two together shall select a third physician, whose determination as to permanent disability shall bebinding on all parties. 

4.2 Effects of Termination. 

 

(a) Termination by the Company- Other than For Cause. If (1) Executives employment is terminated solely upon thediscretion of the Company pursuant to any reason other than for Cause, as defined below; or (2) Executive resigns his employment no more than ninety (90) days after Executive is assigned to report to someone other than the Chief Executive Officer orthe Board of Directors of Company; or (3) Executive resigns his employment no more than ninety (90) days after Executives annual salary is reduced by 20%, Executive shall be entitled to the following: 

 

(i) *Salary and Accrued Vacation.*Pro-rated salary through the dateof termination, accrued vacation earned but not yet paid through the date of termination, and any earned but unpaid bonus, the availability and *pro rata calculation* of which shall be as determined at the discretion of the Board of Directors;

 

(ii) *Severance.* The Company shall pay Executiveseverance equal to six (6) months of Executives annualized base salary in effect as of the date of termination, less applicable deductions and withholdings, either payable in accordance with the Company’s usual payroll practices or in a lumpsum paid within (30) days of the last day of employment with the Company. Such severance is not to be paid merely upon expiration of this Agreement. 

 

(iii) *Medical Benefits.*Executive’s coverage under the company-sponsored group health insurance plan will continue through his or hertermination date (“Termination Date”). After the Termination Date, the Company will continue to maintain Executive as a participant in its health insurance plan as required under, and insofar as elected by Executive, Consolidated OmnibusBudget Reconciliation Act of 1985 (often referred to as “Cobra”. 

 

(iv) *Other Benefits.*Executive will be eligible to participate in the other benefit plans of the Company, at the Company’s cost and as long as continued participation is permitted under the terms andconditions of such plans, until the earlier of the end of the Noncompete Period or Executive’s commencement of any employment activity including, but not limited to, employment, consulting or independent contracting. 

 

(b) Termination by the Company – For Cause. The Company may terminateExecutive’s employment for Cause at any time upon thirty day’s written notice without cure by the Executive in the case of (a) or (c) of this paragraph, below, and without prior written notice, in the case of (b) 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) awarded but not yet paid bonus, the availability and pro rata calculation ofwhich shall be as determined at the discretion of the Board of Directors, (ii) accrued and unpaid salary and vacation time, through the effect date of termination, and (iii) unpaid expenses incurred by the Executive and submitted in compliance withthis Agreement. For the purposes of this Agreement, “Cause” for termination shall be deemed to exist upon (a) a good faith finding by the Company or refusal of Executive to perform his or her assigned duties, consistent with the terms ofthis Agreement, for the Company, (b) material dishonesty, (c) a good faith finding by the Company that Executive has engaged in gross negligence or gross misconduct in a matter that materially interferes with Executive’s job performance, or (d)the conviction of Executive of, or the entry of pleading of guilty or nolo contendre by Executive to, any crime involving moral turpitude or any felony. 

 

(c) Termination through Death or Permanent Disability. In the event of Executives death or permanent disability while employed hereunder, Executive orhis legal representative(s) shall be entitled to all amounts payable through the last date of employment, including pro-rated salary earned but not yet paid and any earned but unpaid bonus, the availability and pro rata calculation of which shall beas determined at the discretion of the Board of 

Directors. Executive shall further be entitled to the severance set forth in paragraph 4.2(a)(ii) above. 

 

4.4 Acknowledgement. Executive acknowledges and agrees that the compensationand benefits provided in this Section 4 have been negotiated with the Company and shall be deemed to fully satisfy any notice requirements that may be required by any jurisdiction. 

 

5. Miscellaneous. 

 

5.1 Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the Company’s successors in interest, including,without limitation, successors through merger, consolidation, or sale of substantially all of the Company’s stock or assets, and shall be binding upon Executive. The Nondisclosure, Developments and Noncompete Agreement and Section 4.2 of thisAgreement shall survive the cessation of Executive’s employment with the Company, regardless of who causes the cessation and regardless of the circumstances surrounding the cessation of employment. 

 

5.2 Notice. All notices required or permitted to be given under thisAgreement shall be giving in writing and shall be deemed sufficiently given if hand delivered by hand or mailed by registered mail, return receipt requested, to Executive’s respective address and the principal offices of the Company, bothlisted above. By giving notice to the other party in accordance with this Paragraph, each party may change the address at which it is to receive notices hereunder. 

 

5.3 Applicable Law; Jurisdiction. This Agreement shall be governed by, construed in, interpreted and enforced in accordancewith the laws of the State of New Jersey. In the event that any action is commenced concerning the parties’ obligations and rights under this Agreement, and such action is for whatever reason not subject to the Arbitration provision ofparagraph 8.4 below, each of the Company and Executive agrees t submit itself to the personal jurisdiction of a competent court sitting within the State of New Jersey. 

 

5.5 Independent Advice. Executive acknowledges that Executive has had the opportunity to evaluate this Agreementindependently and with Executive’s own professional advisors, and has not received and is not relying upon legal, tax or other professional advise from or on behalf of the Company in connection with entering into this Agreement. 

 

5.6 Section Headings. All section headings are included herein forconvenience and are not intended to affect in any way the meaning or interpretations of this Agreement. 

 

5.7 Severability. In the event any provisions of this Agreement is found to be invalid or unenforceability, such provisions shall be severable from theAgreement and shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect. 

 

5.8 Agreement. This Agreement, including the exhibits thereto, and the Nondisclosure, Developments, and Noncompete Agreement previously signed byExecutive constitute the entire agreement between the parties as to employment by the Company of Executive and may only be changed by a written document signed by both parties. No agreements or representatives, oral or otherwise, express or implied,with respect to the subject matter hereof have been made by either party which are not set forth expressly in this Agreement. 

 

5.9 Prior Agreements. This Agreement revokes, replaces and supercedes any prior agreements and understandings, whether written or oral relating to thesubject matter of this Agreement between the Company and Executive. 

IN WITNESS WHEREOF, the parties have executed this Agreement under seal as of the date set forth above,the Company acting herein by its duly authorized officer. 

 

I-many, Inc

By:
 
    /s/ A. Leigh Powell

Name:
 
Leigh Powell

Title:
 
President and Chief Executive Officer

Executive:

/s/ Kevin Harris

Kevin Harris

Exhibit to Employment Agreement 

 

The following provisions referenced in Sections 1 and 2 of the Agreement shall govern the employment of Kevin Harris by the Company:

 

1: *Position*. CFO 

 

2. *Term of employment.*As provided in the Agreement. 

 

3. *Base Salary*. Base Salary shall be defined as $150,000 annualized tobe paid in accordance with the Company’s regular payroll practices. 

 

4. *Employment “At Will”.*Neither Executive nor the Company must have “cause” to terminate the Executive’s employment relationship with the Company. The Company reserves the right, inits sole discretion, to make personnel changes for its own purposes and without limitation. Either Executive or the Company can terminate the parties’ employment relationship at any time, for any or no reason, without prior notice, withoutregard to cause and without incurring any liability other than as specifically stated in Section 4 of the Agreement. None of the policies, benefits, programs, or agreements referenced in this Agreement, nor any such policies, benefits, programs oragreements as are later promulgated and/or amended from time to time by the Company, shall change the at will nature of Executive’s employment relationship. The at will nature of Executive’s employment can only be changed by a writtenresolution by the Board of Directors of the Company. 

 

5.*Supervision.*Reporting to the Chief Executive Officer, subject to discretion of the Board of Directors of the Company