exv10w26






Exhibit 10.26




EXECUTION VERSION




EMPLOYMENT AGREEMENT




(Clyde Swoger)




          EMPLOYMENT AGREEMENT (the “Agreement”) dated August __, 2008 by and between CBaySystems
Holdings Limited (“Holdings”), CBay Inc. (the “Company”) and Clyde Swoger (the “Executive”).



          The Company is a direct wholly-owned subsidiary of Holdings;



          The Company and Holdings (collectively, the “Company Group”) desire to employ Executive and to
enter into an agreement embodying the terms of such employment;



          Executive desires to accept such employment and enter into such an agreement;



          In consideration of the premises and mutual covenants herein and for other good and valuable
consideration, the parties agree as follows:



          1. Term of Employment. Subject to the provisions of Section 8 of this Agreement,
Executive shall be employed by the Company Group for a period commencing immediately following the
later of (a) the admission of the enlarged issued share capital of the Company to the Alternative
Investment Market of the London Stock Exchange plc and (b) the closing of the transaction
contemplated by the Stock Purchase Agreement, dated May 21, 2008, among the Company, Holdings and
Koninklijke Philips Electronics N.V. (the “Commencement Date”), and ending on December 31, 2011
(the “Employment Term”) on the terms and subject to the conditions set forth in this Agreement;
provided, however, that commencing with December 31, 2011 and on each December 31st thereafter
(each an “Extension Date”), the Employment Term shall be automatically extended for an additional
one-year period, unless the Company Group or Executive provides the other party hereto 60 days
prior written notice before the next Extension Date that the Employment Term shall not be so
extended.



          2. Position.



               a. During the Employment Term, Executive shall serve as the Company’s and Holdings’ Chief
Financial Officer. Executive’s primary place of employment will be in Kimberly, WI, subject to
travel in the course of performing Executive’s duties for the Company Group. In such positions,
Executive shall have such duties and authority as shall be determined from time to time by the
Board of Directors of Holdings (the “Board”) in accordance with the Memorandum and Articles of
Association of Holdings (the “M&A”) and the provisions of the BVI Business Companies Act, 2004. If
requested, during the Employment Term, Executive shall also serve as a member of the Board and as a
member of any other board of directors or managers of the Company Group or any of their respective
affiliates, in each case, without additional compensation.



 









 





               b. During the Employment Term, Executive will devote up to 100% of Executive’s business
time and best efforts to the performance of Executive’s duties hereunder and will not engage in any
other business, profession or occupation for compensation or otherwise which would conflict or
interfere with the rendition of such services either directly or indirectly, without the prior
written consent of the Board; provided that nothing herein shall preclude Executive from
engaging in the activities described in Exhibit A attached hereto or from accepting appointment to
or continuing to serve on any board of directors or trustees of any business corporation or any
charitable organization; provided in each case, and in the aggregate, that such activities
do not unreasonably conflict or interfere with the performance of Executive’s duties hereunder or
conflict with Section 9.



          3. Base Salary. During the Employment Term, the Company shall pay Executive a
base salary at the annual rate of U.S.$300,000, payable in regular installments in accordance with
the Company’s usual payment practices. Executive shall be entitled to such increases in
Executive’s base salary, if any, as may be determined from time to time in the sole discretion of
the Board. Executive’s annual base salary, as in effect from time to time, is hereinafter referred
to as the “Base Salary.”



          4. Bonuses.



               a. Annual Bonus. With respect to each full fiscal year during the Employment Term
commencing with fiscal year 2009, Executive shall be eligible to earn an annual bonus award (an
“Annual Bonus”) of up to U.S.$400,000 (the “Target”) based upon the achievement of target
performance objectives established by the Board within the first three months of each fiscal year
during the Employment Term. With respect to fiscal year 2008, Executive shall be eligible to earn a
pro-rated portion of the Target Annual Bonus based upon the number of days Executive was employed
by the Company during such year. The Annual Bonus, if any, shall be paid by the Company to
Executive during the calendar year immediately following the year in which it is earned, as soon as
practicable after the Company receives its audited financial statements with respect to the year in
which the bonus was earned.



               b. Cash-Based Signing Bonus. Executive shall be entitled to a signing bonus in an
aggregate amount equal to U.S.$500,000, one-half of which shall be paid by the Company in cash on
or within 10 days following the Commencement Date, and the remaining one-half of which shall be
paid by the Company in cash on or prior to February 28, 2009, subject to applicable tax
withholdings.



          5. Equity Arrangements. On the Commencement Date, Holdings will grant to Executive
the right and option (the “Option”) to purchase, on the terms and conditions set forth in Holdings’
2007 Equity Incentive Plan (the “Option Plan”) and the related option award agreement and provided
such purchase is effected in accordance with any applicable requirements under the M&A, all or any
part of 778,000 ordinary shares of Holdings, subject to adjustment as set forth in the Option Plan.



          6. Employee Benefits. During the Employment Term, Executive shall be entitled to
participate in the Company’s employee benefit plans as in effect from time to time (collectively
“Employee Benefits”), on the same basis as those benefits are generally made available to other
senior executives of the Company Group.



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          7. Business Expenses. During the Employment Term, reasonable business expenses
incurred by Executive in the performance of Executive’s duties hereunder shall be reimbursed by the
Company in accordance with Company policies.



          8. Termination. The Employment Term and Executive’s employment hereunder may be
terminated by either party at any time and for any reason; provided that Executive will be required
to give the Company Group at least 90 days advance written notice of any resignation of Executive’s
employment. Notwithstanding any other provision of this Agreement, the provisions of this Section
8 shall exclusively govern Executive’s rights upon termination of employment with the Company Group
and its affiliates.



               a. By the Company Group For Cause or By Executive Resignation Without Good Reason.



          (i) The Employment Term and Executive’s employment hereunder may be terminated by the Company
Group for Cause (as defined below) and shall terminate automatically upon Executive’s resignation
without Good Reason (as defined in Section 8(c)); provided that Executive will be required to give
the Company Group at least 90 days advance written notice of a resignation without Good Reason.



          (ii) For purposes of this Agreement, “Cause” shall mean (A) Executive’s failure to
substantially perform Executive’s material duties hereunder (other than as a result of total or
partial incapacity due to physical or mental illness), (B) willful dishonesty in the performance of
Executive’s duties hereunder, (C) Executive’s conviction of, or plea of nolo
contendere to a crime constituting (x) a felony under the laws of the United States or any
state thereof or (y) a misdemeanor involving moral turpitude, (D) Executive’s willful malfeasance
or willful misconduct in connection with Executive’s duties hereunder or any intentional act or
intentional omission which is injurious to the financial condition or business reputation of the
Company Group or any of its subsidiaries or affiliates or (E) Executive’s breach of the provisions
of Sections 9 or 10 of this Agreement; provided that the event described in clause (A) of
this Section 8(a)(ii) shall constitute Cause only if the Executive fails to cure such event within
30 days after receipt from the Company Group of written notice of the event which constitutes
Cause.



          (iii) If Executive’s employment is terminated by the Company Group for Cause, or if Executive
resigns without Good Reason, Executive shall be entitled to receive:




          (A) the Base Salary through the date of termination;




          (B) any Annual Bonus earned, but unpaid, as of the date of termination for the
immediately preceding fiscal year, paid in accordance with Section 4 (except to the
extent payment is otherwise deferred pursuant to any applicable deferred compensation
arrangement with the Company);




          (C) reimbursement, within 60 days following submission by Executive to the
Company of appropriate supporting documentation) for any unreimbursed business expenses
properly incurred by Executive in accordance with Company policy prior to the date of
Executive’s termination; provided claims for such



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reimbursement (accompanied by appropriate supporting documentation) are submitted
to the Company within 90 days following the date of Executive’s termination of
employment; and




          (D) such Employee Benefits, if any, as to which Executive may be entitled under
the employee benefit plans of the Company (the amounts described in clauses (A) through
(D) hereof being referred to as the “Accrued Rights”).



          Following such termination of Executive’s employment by the Company Group for Cause or
resignation by Executive without Good Reason, except as set forth in this Section 8(a)(iii),
Executive shall have no further rights to any compensation or any other benefits under this
Agreement.



               b. Disability or Death.



          (i) The Employment Term and Executive’s employment hereunder shall terminate upon Executive’s
death and may be terminated by the Company Group if Executive becomes physically or mentally
incapacitated and is therefore unable for a period of six (6) consecutive months or for an
aggregate of nine (9) months in any twenty-four (24) consecutive month period to perform
Executive’s duties (such incapacity is hereinafter referred to as “Disability”). Any question as
to the existence of the Disability of Executive as to which Executive and the Company Group cannot
agree shall be determined in writing by a qualified independent physician mutually acceptable to
Executive and the Company Group. If Executive and the Company Group cannot agree as to a qualified
independent physician, each shall appoint such a physician and those two physicians shall select a
third who shall make such determination in writing. The determination of Disability made in
writing to the Company Group and Executive shall be final and conclusive for all purposes of the
Agreement.



          (ii) Upon termination of Executive’s employment hereunder for either Disability or death,
Executive or Executive’s estate (as the case may be) shall be entitled to receive:




          (A) the Accrued Rights; and




          (B) a pro rata portion of any Annual Bonus, if any, that Executive would have
been entitled to receive pursuant to Section 4 hereof in such year based upon the
percentage of the fiscal year that shall have elapsed through the date of Executive’s
termination of employment, payable when such Annual Bonus would have otherwise been
payable to Executive pursuant to Section 4 had Executive’s employment not terminated
(the “Pro-Rata Bonus”).



          Following Executive’s termination of employment due to death or Disability, except as set
forth in this Section 8(b)(ii), Executive shall have no further rights to any compensation or any
other benefits under this Agreement.



               c. By the Company Group Without Cause or Resignation by Executive for Good Reason.



          (i) The Employment Term and Executive’s employment hereunder may be



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terminated by the Company Group without Cause or by Executive’s resignation for Good Reason.




               (ii) For purposes of this Agreement, “Good Reason” shall mean (A) breach by the Company Group
of any material term of this Agreement, including but not limited to the failure of the Company to
pay or cause to be paid Executive’s Base Salary or Annual Bonus, when due hereunder, (B) any
material diminution in Executive’s authority or responsibilities from those described in Section 2
hereof, or (C) the relocation of Executive’s primary place of employment to a location more than 30
miles from the location identified in Section 2(a) of this Agreement; provided that the
events described in clauses (A), (B) and (C) of this Section 8(c)(ii) shall constitute Good Reason
only if the Company Group fails to cure such event within 30 days after receipt from Executive of
written notice of the event which constitutes Good Reason; provided, further, that
“Good Reason” shall cease to exist for an event on the 60th day following the later of
its occurrence or Executive’s knowledge thereof, unless Executive has given the Company Group
written notice thereof prior to such date.



               (iii) If Executive’s employment is terminated by the Company Group without Cause (other than
by reason of death or Disability) or if Executive resigns for Good Reason (provided that in either
such case Executive does not immediately thereafter commence employment with an affiliate of the
Company Group), Executive shall be entitled to receive (commencing within 60 days following the
termination date):




               (A) the Accrued Rights; and




               (B) a Pro-Rata Bonus for the year of termination; and




               (C) subject to Executive’s continued compliance with the provisions of Sections
9 and 10 and to Executive’s execution and delivery of a general release of claims in
favor of the Company Group and its affiliates in a form prescribed by the Company Group
within 45 days following the termination date, continued payment of the Base Salary in
accordance with the Company’s normal payroll practices, as in effect on the date of
termination of Executive’s employment, as in effect on the date of termination of
Executive’s employment, until twelve months after the date of such termination (the
“Salary Continuation Payments”).



          Following Executive’s termination of employment by the Company Group without Cause (other than
by reason of Executive’s death or Disability) or by Executive’s resignation for Good Reason as
described above, except as set forth in this Section 8(c)(iii), Executive shall have no further
rights to any compensation or any other benefits under this Agreement or any other severance or
termination benefit plan sponsored or maintained by the Company Group.



               d. Election Not to Extend the Employment Term. In the event either party elects
not to extend the Employment Term pursuant to Section 1, unless Executive’s employment is earlier
terminated pursuant to paragraphs (a), (b) or (c) of this Section 8, Executive’s termination of
employment hereunder (whether or not Executive continues as an employee of the Company Group
thereafter) shall be deemed to occur on the close of business on the day immediately preceding the
next scheduled Extension Date. In the event that the



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Executive elects not to extend the Employment Term, Executive shall be entitled to receive the
Accrued Rights. In the event that the Company Group elects not to extend the Employment Term,
Executive shall be entitled to receive the Accrued Rights and the Salary Continuation Payments.




          Following such termination of Executive’s employment hereunder as a result of either party’s
election not to extend the Employment Term, except as set forth in this Section 8(d), Executive
shall have no further rights to any compensation or any other benefits under this Agreement.



               e. Notice of Termination. Any purported termination of employment by the Company
Group or by Executive (other than due to Executive’s death) shall be communicated by written Notice
of Termination to the other party hereto in accordance with Section 12(h) hereof. For purposes of
this Agreement, a “Notice of Termination” shall mean a notice which shall indicate the specific
termination provision in this Agreement relied upon and shall set forth in reasonable detail the
facts and circumstances claimed to provide a basis for termination of employment under the
provision so indicated.



               f. Board/Committee Resignation. Upon termination of Executive’s employment for
any reason, Executive agrees to resign, as of the date of such termination and to the extent
applicable, from the Board (and any committees thereof) and the Board of Directors (and any
committees thereof) of any of the Company Group’s affiliates.



          9. Non-Competition.



               a. Executive acknowledges and recognizes the highly competitive nature of the businesses
of the Company Group and its affiliates and accordingly agrees as follows:



     (1) During the Employment Term and, for a period of one year following the date Executive
ceases to be employed by the Company Group (the “Restricted Period”), Executive will not, whether
on Executive’s own behalf or on behalf of or in conjunction with any person, firm, partnership,
joint venture, association, corporation or other business organization, entity or enterprise
whatsoever (“Person”), directly or indirectly solicit or assist in soliciting in competition with
the Company Group, the business of any client or prospective client:




	 	(i)	 	with whom Executive had personal contact or
dealings on behalf of the Company Group during the one-year period
preceding Executive’s termination of employment;
	 
	 	(ii)	 	with whom employees reporting to Executive have had
personal contact or dealings on behalf of the Company Group during the one
year immediately preceding the Executive’s termination of employment; or
	 
	 	(iii)	 	for whom Executive had direct or indirect
responsibility during the one year immediately preceding Executive’s
termination of employment.





     (2) During the Restricted Period, Executive will not directly or



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indirectly:





	 	(i)	 	engage in any medical transcription processing
services business, physician services business or other business that
competes with the business of the Company Group or its affiliates
(including, without limitation, businesses which the Company Group or its
affiliates have specific plans to conduct in the future and as to which
Executive is aware of such planning) in any geographical area where the
Company Group or its affiliates manufactures, produces, sells, leases,
rents, licenses or otherwise provides its products or services (a
“Competitive Business”);
	 
	 	(ii)	 	enter the employ of, or render any services to, any
Person (or any division or controlled or controlling affiliate of any
Person) who or which engages in a Competitive Business;
	 
	 	(iii)	 	acquire a financial interest in, or otherwise
become actively involved with, any Competitive Business, directly or
indirectly, as an individual, partner, shareholder, officer, director,
principal, agent, trustee or consultant; or
	 
	 	(iv)	 	interfere with, or attempt to interfere with,
business relationships (whether formed before, on or after the date of this
Agreement) between the Company Group or any of its affiliates, customers,
clients, suppliers or investors.





     (3) Notwithstanding anything to the contrary in this Agreement, Executive may, directly or
indirectly own, solely as an investment, securities of any Person engaged in the business of the
Company Group or its affiliates which are publicly traded on a national or regional stock exchange
or on the over-the-counter market if Executive (i) is not a controlling person of, or a member of a
group which controls, such person and (ii) does not, directly or indirectly, own 2% or more of any
class of securities of such Person.



     (4) During the Restricted Period, Executive will not, whether on Executive’s own behalf or
on behalf of or in conjunction with any Person, directly or indirectly:




	 	(i)	 	solicit or encourage any employee of the Company
Group or its affiliates to leave the employment of the Company Group or its
affiliates; or
	 
	 	(ii)	 	hire any such employee who was employed by the
Company Group or its affiliates as of the date of Executive’s termination
of employment with the Company Group or who left the employment of the
Company Group or its affiliates coincident with, or within one year prior
to or after, the termination of Executive’s employment with the Company
Group.





     (5) During the Restricted Period, Executive will not, directly or indirectly, solicit or
encourage to cease to work with the Company Group or its affiliates any consultant then under
contract with the Company Group or its affiliates.



                    b. It is expressly understood and agreed that although Executive and



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the Company Group consider the restrictions contained in this Section 9 to be reasonable, if a
final judicial determination is made by a court of competent jurisdiction that the time or
territory or any other restriction contained in this Agreement is an unenforceable restriction
against Executive, the provisions of this Agreement shall not be rendered void but shall be deemed
amended to apply as to such maximum time and territory and to such maximum extent as such court may
judicially determine or indicate to be enforceable. Alternatively, if any court of competent
jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such
restriction cannot be amended so as to make it enforceable, such finding shall not affect the
enforceability of any of the other restrictions contained herein.




          10. Confidentiality; Intellectual Property.



                    a. Confidentiality.



               (i) Executive will not at any time (whether during or after Executive’s employment with the
Company Group) (x) retain or use for the benefit, purposes or account of Executive or any other
Person; or (y) disclose, divulge, reveal, communicate, share, transfer or provide access to any
Person outside the Company Group (other than its professional advisers who are bound by
confidentiality obligations), any non-public, proprietary or confidential information —including
without limitation trade secrets, know-how, research and development, software, databases,
inventions, processes, formulae, technology, designs and other intellectual property, information
concerning finances, investments, profits, pricing, costs, products, services, vendors, customers,
clients, partners, investors, personnel, compensation, recruiting, training, advertising, sales,
marketing, promotions, government and regulatory activities and approvals — concerning the past,
current or future business, activities and operations of the Company Group, its subsidiaries or
affiliates and/or any third party that has disclosed or provided any of same to the Company Group
on a confidential basis (“Confidential Information”) without the prior written authorization of the
Board.



               (ii) “Confidential Information” shall not include any information that is (a) generally known
to the industry or the public other than as a result of Executive’s breach of this covenant or any
breach of other confidentiality obligations by third parties; (b) made legitimately available to
Executive by a third party without breach of any confidentiality obligation; or (c) required by law
to be disclosed; provided that Executive shall give prompt written notice to the Company
Group of such requirement, disclose no more information than is so required, and cooperate with any
attempts by the Company Group to obtain a protective order or similar treatment.



               (iii) Except as required by law, Executive will not disclose to anyone, other than
Executive’s immediate family and legal or financial advisors, the existence or contents of this
Agreement; provided that Executive may disclose to any prospective future employer the
provisions of Sections 9 and 10 of this Agreement provided they agree to maintain the
confidentiality of such terms.



               (iv) Upon termination of Executive’s employment with the Company Group for any reason,
Executive shall (x) cease and not thereafter commence use of any Confidential Information or
intellectual property (including without limitation, any patent, invention, copyright, trade
secret, trademark, trade name, logo, domain name or other source indicator)



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owned or used by the Company Group, its subsidiaries or affiliates; (y) immediately destroy,
delete, or return to the Company Group, at the Company Group’s option, all originals and copies in
any form or medium (including memoranda, books, papers, plans, computer files, letters and other
data) in Executive’s possession or control (including any of the foregoing stored or located in
Executive’s office, home, laptop or other computer, whether or not Company Group property) that
contain Confidential Information or otherwise relate to the business of the Company Group, its
affiliates and subsidiaries, except that Executive may retain only those portions of any personal
notes, notebooks and diaries that do not contain any Confidential Information; and (z) notify and
fully cooperate with the Company Group regarding the delivery or destruction of any other
Confidential Information of which Executive is or becomes aware.




                    b. Intellectual Property.



               (i) If Executive has created, invented, designed, developed, contributed to or improved any
works of authorship, inventions, intellectual property, materials, documents or other work product
(including without limitation, research, reports, software, databases, systems, applications,
presentations, textual works, content, or audiovisual materials) (“Works”), either alone or with
third parties, prior to Executive’s employment by the Company Group, that are relevant to or
implicated by such employment (“Prior Works”), Executive hereby grants the Company Group a
perpetual, non-exclusive, royalty-free, worldwide, assignable, sublicensable license under all
rights and intellectual property rights (including rights under patent, industrial property,
copyright, trademark, trade secret, unfair competition and related laws) therein for all purposes
in connection with the Company Group’s current and future business.



               (ii) If Executive creates, invents, designs, develops, contributes to or improves any Works,
either alone or with third parties, at any time during Executive’s employment by the Company Group
and within the scope of such employment and/or with the use of any the Company Group resources
(“Company Works”), Executive shall promptly and fully disclose same to the Company Group and hereby
irrevocably assigns, transfers and conveys, to the maximum extent permitted by applicable law, all
rights and intellectual property rights therein (including rights under patent, industrial
property, copyright, trademark, trade secret, unfair competition and related laws) to the Company
Group to the extent ownership of any such rights does not vest originally in the Company Group.



               (iii) Executive agrees to keep and maintain adequate and current written records (in the form
of notes, sketches, drawings, and any other form or media requested by the Company Group) of all
Company Works. The records will be available to and remain the sole property and intellectual
property of the Company Group at all times.



               (iv) Executive shall take all requested actions and execute all requested documents
(including any licenses or assignments required by a government contract) at the Company Group’s
expense (but without further remuneration) to assist the Company Group in validating, maintaining,
protecting, enforcing, perfecting, recording, patenting or registering any of the Company Group’s
rights in the Prior Works and Company Works. If the Company Group is unable for any other reason
to secure Executive’s signature on any document for this purpose, then Executive hereby irrevocably
designates and appoints the Company Group and its duly authorized officers and agents as
Executive’s agent and attorney in fact, to act for and in Executive’s behalf and stead to execute
any documents and to do all other lawfully permitted



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acts in connection with the foregoing.




               (v) Executive shall not improperly use for the benefit of, bring to any premises of, divulge,
disclose, communicate, reveal, transfer or provide access to, or share with the Company Group any
confidential, proprietary or non-public information or intellectual property relating to a former
employer or other third party without the prior written permission of such third party. Executive
hereby indemnifies, holds harmless and agrees to defend the Company Group and its officers,
directors, partners, employees, agents and representatives from any breach of the foregoing
covenant. Executive shall comply with all relevant policies and guidelines of the Company Group,
including regarding the protection of confidential information and intellectual property and
potential conflicts of interest. Executive acknowledges that the Company Group may amend any such
policies and guidelines from time to time, and that Executive remains at all times bound by their
most current version.



               (vi) The provisions of Section 10 shall survive the termination of Executive’s employment for
any reason.



          11. Specific Performance. Executive acknowledges and agrees that the Company
Group’s remedies at law for a breach or threatened breach of any of the provisions of Section 9 or
Section 10 would be inadequate and the Company Group would suffer irreparable damages as a result
of such breach or threatened breach. In recognition of this fact, Executive agrees that, in the
event of such a breach or threatened breach, in addition to any remedies at law, the Company Group,
without posting any bond, shall be entitled to obtain equitable relief in the form of specific
performance, temporary restraining order, temporary or permanent injunction or any other equitable
remedy which may then be available. In addition, in the event of any breach of Section 9 or
Section 10, in addition to any remedies at law, the Company Group, without posting any bond, shall
be entitled to cease making any payments or providing any benefit otherwise required by this
Agreement (which payments shall be deemed permanently forfeited if it is established that Executive
breached Section 9 or Section 10).



          12. Miscellaneous.



               a. Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without regard to conflicts of laws principles thereof.



               b. Entire Agreement/Amendments. This Agreement contains the entire understanding
of the parties with respect to the employment of Executive by the Company Group. There are no
restrictions, agreements, promises, warranties, covenants or undertakings between the parties with
respect to the subject matter herein other than those expressly set forth herein. This Agreement
may not be altered, modified, or amended except by written instrument signed by the parties hereto.



               c. No Waiver. The failure of a party to insist upon strict adherence to any term
of this Agreement on any occasion shall not be considered a waiver of such party’s rights or
deprive such party of the right thereafter to insist upon strict adherence to that term or any
other term of this Agreement.



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               d. Severability. In the event that any one or more of the provisions of this
Agreement shall be or become invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions of this Agreement shall not be affected
thereby.



               e. Assignment. This Agreement, and all of Executive’s rights and duties
hereunder, shall not be assignable or delegable by Executive. Any purported assignment or
delegation by Executive in violation of the foregoing shall be null and void ab initio and of no
force and effect. This Agreement may be assigned by Holdings or the Company to a person or entity
which is an affiliate or a successor in interest to substantially all of the business operations of
Holdings or the Company. Upon such assignment, the rights and obligations of Holdings or the
Company hereunder shall become the rights and obligations of such affiliate or successor person or
entity.



               f. Compliance with IRC Section 409A. Notwithstanding anything herein to the
contrary, (i) if at the time of Executive’s termination of employment with the Company Group
Executive is a “specified employee” as defined in Section 409A of the Internal Revenue Code of
1986, as amended (the “Code”) and the deferral of the commencement of any payments or benefits
otherwise payable hereunder as a result of such termination of employment is necessary in order to
prevent any accelerated or additional tax under Section 409A of the Code, then the Company will
defer the commencement of the payment of any such payments or benefits hereunder (without any
reduction in such payments or benefits ultimately paid or provided to Executive) until the date
that is six months following Executive’s termination of employment with the Company Group (or the
earliest date as is permitted under Section 409A of the Code) and (ii) if any other payments of
money or other benefits due to Executive hereunder could cause the application of an accelerated or
additional tax under Section 409A of the Code, such payments or other benefits shall be deferred if
deferral will make such payment or other benefits compliant under Section 409A of the Code, or
otherwise such payment or other benefits shall be restructured, to the extent possible, in a
manner, determined by the Board, that does not cause such an accelerated or additional tax. The
Company Group shall consult with Executive in good faith regarding the implementation of the
provisions of this Section 12(f); provided that neither the Company Group nor any of its
employees or representatives shall have any liability to Executive with respect to thereto. For
purposes of Section 409A of the Code, each payment made under this Agreement shall be designated as
a “separate payment” within the meaning of the Section 409A of the Code, and references herein to
Executive’s “termination of employment” shall refer to Executive’s separation from service with the
Company Group within the meaning of Section 409A. To the extent any reimbursements or in-kind
benefits due to Executive under this Agreement constitute “deferred compensation” under Section
409A of the Code, any such reimbursements or in-kind benefits shall be paid to Executive in a
manner consistent with Treas. Reg. Section 1.409A-3(i)(1)(iv).



               g. Indemnification. The Company Group shall maintain directors and officers
liability insurance in commercially reasonable amounts (as reasonably determined by the Board), and
the Executive shall be covered under such insurance to the same extent as any other senior
executive of the Company Group. In addition, the Company Group shall, to the maximum extent
permitted by law, and under the Company’s or Holding’s Charter, By-laws or standing or other
resolutions, defend, indemnify and hold harmless the Executive from and against any and all claims
made against the Executive concerning or relative to his service, actions or omissions



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on behalf of the Company Group as an officer, employee, director or agent thereof.




               h. Successors; Binding Agreement. This Agreement shall inure to the benefit of
and be binding upon personal or legal representatives, executors, administrators, successors,
heirs, distributees, devisees and legatees.



               i. Notice. For the purpose of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be deemed to have been
duly given when delivered by hand or overnight courier or three days after it has been mailed by
United States registered mail, return receipt requested, postage prepaid, addressed to the
respective addresses set forth below in this Agreement, or to such other address as either party
may have furnished to the other in writing in accordance herewith, except that notice of change of
address shall be effective only upon receipt.


If to the Company or to Holdings:



CBay Inc.

2661 Riva Road

Building 1000, Fifth Floor

Annapolis, Maryland 21401



Attention: General Counsel



With a copy to:



CBaySystems Holdings Limited

2661 Riva Road

Building 1000, Fifth Floor

Annapolis, Maryland 21401



Attention: General Counsel



If to Executive:




                 To the most recent address of Executive set forth in the personnel records of the Company
Group.



               j. Executive Representation. Executive hereby represents to the Company Group
that the execution and delivery of this Agreement by Executive and the Company Group and the
performance by Executive of Executive’s duties hereunder shall not constitute a breach of, or
otherwise contravene, the terms of any employment agreement or other agreement or policy to which
Executive is a party or otherwise bound.



               k. Prior Agreements. This Agreement supercedes all prior agreements and
understandings (including verbal agreements) between Executive and the Company Group and/or its
affiliates regarding the terms and conditions of Executive’s employment with the Company Group
and/or its affiliates.



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               l. Cooperation. Executive shall provide Executive’s reasonable cooperation in
connection with any action or proceeding (or any appeal from any action or proceeding) which
relates to events occurring during Executive’s employment hereunder. This provision shall survive
any termination of this Agreement.



               m. Withholding Taxes. The Company Group may withhold from any amounts payable
under this Agreement such Federal, state and local taxes as may be required to be withheld pursuant
to any applicable law or regulation.



               n. Counterparts. This Agreement may be signed in counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and hereto were upon the
same instrument.



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     IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and
year first above written.



	 	 	 	 	 	 	 

	CBAY INC.
	 	 	 	CLYDE SWOGER	 	 
	 
	 	 	 	 	 	 
	/s/ Authorized
Signatory
	 	 	 	/s/ Clyde Swoger	 	 
	 


	 	 
	 	 

	 	 
	By:
	 	 	 	 	 	 
	Title:  Authorized Signatory
	 	 	 	 	 	 






	 	 	 

	CBAYSYSTEMS HOLDINGS LIMITED
	 	 
	/s/ Authorized
Signatory
	 	 
	 


By:

	 	 
	Title:  Authorized Signatory
	 	 






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EXHIBIT A





	1.	 	Owning Creative Business Solutions LLC and providing part-time management
consulting services through this entity to clients who are not competitive with the
Company.
	 
	2.	 	Various consulting and related responsibilities associated with the ongoing
relationship with SAC.




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