EX-10.1






Exhibit 10.1




SEVERANCE AGREEMENT AND GENERAL RELEASE




     This SEVERANCE AGREEMENT AND GENERAL RELEASE (hereinafter referred to as the “Agreement”) is
made and entered into by and between EMAGEON INC. (hereinafter referred to as “Emageon”) and
CHARLES A. JETT, JR. (hereinafter referred to as “Employee”).



     WHEREAS, on August 10, 2004, Employee entered into an Employment Agreement (the “Employment
Agreement”) with Emageon whereby Emageon employed Employee as Chief Executive Officer; and



     WHEREAS, on July 8, 2008, Employee and Emageon entered into an Amendment to Employment
Agreement; and



     WHEREAS, Emageon has entered into an Agreement and Plan of Merger, dated February 22, 2009 (as
amended or supplemented from time to time, the “Merger Agreement”), with AMICAS, Inc., a Delaware
corporation (“AMICAS”), and AMICAS Acquisition Corp., a Delaware corporation and a direct
wholly-owned subsidiary of AMICAS (“Merger Sub”), pursuant to which AMICAS and Merger Sub have
agreed to commence a tender offer (the “Offer”) for all of the outstanding shares of common stock
of Emageon (the “Shares”) and, following the consummation of the Offer, to cause Merger Sub to be
merged with and into Emageon, with Emageon as the surviving corporation (the “Merger”); and



     WHEREAS, Employee and Emageon have, in connection with the Merger Agreement, the Offer and the
Merger, mutually agreed to terminate Employee’s employment with Emageon pursuant to the terms of
the Employment Agreement; and



     WHEREAS, Employer and Employee desire to enter into this Agreement to recite the terms of
Employee’s separation and to resolve any potential disputes and release any potential claims held
by the parties as of the date hereof.



     NOW, THEREFORE, Emageon and Employee agree as follows:




	1.	 	Termination of Employment. Employee’s employment with Emageon shall be terminated
effective as of the date on which the Minimum Tender Condition (as defined in the Merger
Agreement) shall have been satisfied and Merger Sub shall have accepted for purchase and paid
for the Shares tendered (and not withdrawn) pursuant to the Offer (the “Separation Date”);
provided, that if the Separation Date has not occurred by the Outside Date (as defined in the
Merger Agreement), this Agreement shall become void. Employee acknowledges that, as of the
Separation Date, his employment relationship with Emageon will be permanently severed and that
Emageon has no obligation to rehire or re-employ him in the future.
	 
	2.	 	Payment for Accrued Salary. Employee shall receive payment for all of his base salary
and any accrued and unused vacation through the Separation Date, less all applicable statutory
withholdings and deductions, in accordance with Emageon’s usual practice for making salary
payments to employees. Employee acknowledges that he is entitled to no additional payments for
earned salary or accrued but unused vacation time except as set forth in this Agreement.
	 
	3.	 	Severance Benefits. In consideration of the promises set forth herein, upon the
execution of this Agreement and the expiration of the revocation period described in Section
16(5) below, Emageon agrees to provide Employee with the following severance benefits:




 









 












	 	(a)	 	Emageon shall pay Employee as a lump sum the amount of $1,235,500 less all
applicable statutory withholdings and deductions, which is the equivalent of (1)
Employee’s monthly base salary plus one-twelfth (1/12) of Employee’s target annual
bonus, multiplied by (ii) twenty-four (24) months; and
	 
	 	(b)	 	Emageon shall pay Employee as a lump sum (i) the amount of $23,203.44, which is
equivalent to the cost for Employee to maintain continuing family health and dental
insurance for twenty-four (24) months pursuant to an election of coverage under the
Consolidated Omnibus Benefits Reconciliation Act of 1985, less the Employee’s share of
insurance benefits under Emageon’s current benefit plans; (ii) the amount of $8,000
with respect to life insurance coverage; and (iii) the amount of $33,942.31 for
accrued, but unused vacation; and
	 
	 	(c)	 	Employee will become fully vested in all stock options, stock appreciation
rights, restricted stock and restricted stock units held by Employee as of the
Separation Date, subject to the terms and conditions of the plan and award agreements
with respect thereto.






	 	 	Employee hereby acknowledges that the severance benefits provided for herein are conditioned
upon his execution of and compliance with this Agreement and constitute value to which he is
not already entitled. Employee further acknowledges that he is entitled to no additional
severance benefits.
	 
	 	 	The severance benefits provided in this Section are payable to the Employee within 10 days
after his Separation Date; provided that in all events such amounts shall be paid no later
than the later of (a) the end of the calendar year in which the Separation Date occurs, or
(b) the 15th day of the third calendar month following such specified date, and provided
further that the Employee is not permitted to designate the taxable year of the payment.
Accordingly, it is the intent of Emageon that all payments payable to the Employee pursuant
to this Section shall be exempt from Section 409A of the Internal Revenue Code of 1986, as
amended (the “Code”) as short-term deferrals. However, if Emageon reasonably determines that
any payment to Employee pursuant to this Agreement is not exempt as a short-term deferral
and must be delayed for six-months to avoid a violation of Code Section 409A(a)(2)(B), such
payment shall be paid on the next business day following the six-month anniversary of the
Employee’s Separation Date.
	 
	3A.	 	Excise Tax Gross Up Payment.






	 	(a)	 	In the event it shall be determined that any payment or distribution by Emageon
to or for the benefit of Employee (whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise, but determined
without regard to any additional payments required under this Section 3A (a “Payment”)
would be subject to the excise tax imposed by Code Section 4999 or any interest or
penalties are incurred by Employee with respect to such excise tax (such excise tax,
together with any such interest and penalties, are hereinafter collectively referred to
as the “Excise Tax”), then Employee shall be entitled to receive an additional payment
(a “Gross-Up Payment”) in an amount such that after payment by Employee of all taxes
(including any interest or penalties imposed with respect to such taxes), including,
without limitation, any income taxes (and any interest and penalties imposed with
respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Employee retains an
amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments.




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	 	(b)	 	Subject to the provisions of Section 3A(c), all determinations required to be
made under this Section 3A, including whether and when a Gross-Up Payment is required
and the amount of such Gross-Up Payment and the assumptions to be used in arriving at
such determination, shall be made by a certified public accounting firm selected by
Employee (other than the Emageon’s regular accounting firm) and reasonably acceptable
to Emageon (the “Accounting Firm”) which shall provide detailed supporting calculations
both to Emageon and Employee within 15 business days of the receipt of notice from
Employee that there has been a Payment, or such earlier time as is reasonably requested
by Emageon. All fees and expenses of the Accounting Firm shall be borne solely by
Emageon. Any Gross-Up Payment, as determined pursuant to this Section 3A, shall be paid
by Emageon to Employee within five days of the receipt of the Accounting Firm’s
determination. Any determination by the Accounting Firm shall be binding upon Emageon
and Employee. As a result of the uncertainty in the application of Code Section 4999 at
the time of the initial determination by the Accounting Firm hereunder, it is possible
that Gross-Up Payments which will not have been made by Emageon should have been made
(an “Underpayment”), consistent with the calculations required to be made hereunder. In
the event that the Emageon exhausts its remedies pursuant to Section 3A(c) and Employee
thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall
determine the amount of the Underpayment that has occurred and any such Underpayment
shall be promptly paid by Emageon to or for the benefit of Employee.
	 
	 	(c)	 	Employee shall notify Emageon in writing of any claim by the Internal Revenue
Service that, if successful, would require the payment by Emageon of a Gross-Up Payment
(or an additional Gross-Up Payment). Such notification shall be given as soon as
practicable but no later than ten business days after Employee is informed in writing
of such claim and shall apprise Emageon of the nature of such claim and the date on
which such claim is requested to be paid. Employee shall not pay such claim prior to
the expiration of the 30-day period following the date on which he gives such notice to
Emageon (or such shorter period ending on the date that any payment of taxes with
respect to such claim is due). If Emageon notifies Employee in writing prior to the
expiration of such period that it desires to contest such claim, Employee shall: (1)
give Emageon any information reasonably requested by Emageon relating to such claim,
(2) take such action in connection with contesting such claim as Emageon shall
reasonably request in writing from time to time, including, without limitation,
accepting legal representation with respect to such claim by an attorney reasonably
selected by Emageon, (3) cooperate with Emageon in good faith in order effectively to
contest such claim, and (4) permit Emageon to participate in any proceedings relating
to such claim; provided, however, that Emageon shall bear and pay directly all costs
and expenses (including additional interest and penalties) incurred in connection with
such contest and shall indemnify and hold Employee harmless, on an after-tax basis, for
any Excise Tax or income tax (including interest and penalties with respect thereto)
imposed as a result of such representation and payment of costs and expenses. Without
limitation of the foregoing provisions of this Section 3A(c), Emageon shall control all
proceedings taken in connection with such contest (to the extent applicable to the
Excise Tax and the Gross-Up Payment) and, at its sole option, may pursue or forgo any
and all administrative appeals, proceedings, hearings and conferences with the taxing
authority in respect of such claim and may, at its sole option, either direct Employee
to pay the tax claimed and sue for a refund or contest the claim in any permissible
manner, and Employee agrees to prosecute such contest to a determination before any
administrative tribunal, in a court of initial jurisdiction and in one or more
appellate courts, as Emageon shall determine; provided,




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	 	 	 	however, that if Emageon directs Employee to pay such claim and sue for a refund,
Emageon shall, if permitted by law, advance the amount of such payment to Employee,
on an interest-free basis and shall indemnify and hold Employee harmless, on an
after-tax basis, from any Excise Tax or income tax (including interest or penalties
with respect thereto) imposed with respect to such advance or with respect to any
imputed income with respect to such advance; and further provided that any extension
of the statute of limitations relating to payment of taxes for the taxable year of
Employee with respect to which such contested amount is claimed to be due is limited
solely to such contested amount. Furthermore, Emageon’s control of the contest shall
be limited to issues with respect to which a Gross-Up Payment would be payable
hereunder and Employee shall be entitled to settle or contest, as the case may be,
any other issue raised by the Internal Revenue Service or any other taxing
authority.
	 
	 	(d)	 	If, after the receipt by Employee of an amount advanced by Emageon pursuant to
Section 3A(c), Employee becomes entitled to receive any refund with respect to such
claim, Employee shall (subject to Emageon’s complying with the requirements of Section
3A(c) promptly pay to Emageon the amount of such refund (together with any interest
paid or credited thereon after taxes applicable thereto). If, after the receipt by
Employee of an amount advanced by Emageon pursuant to Section 3A(c), a determination is
made that Employee shall not be entitled to any refund with respect to such claim and
Emageon does not notify Employee in writing of its intent to contest such denial of
refund prior to the expiration of 30 days after such determination, then such advance
shall be forgiven and shall not be required to be repaid and the amount of such advance
shall offset, to the extent thereof, the amount of the Gross-Up Payment required to be
paid.
	 
	 	(e)	 	Notwithstanding the other provisions of this Section 3A, (i) each Gross-Up
Payment required to be made by Emageon to Employee hereunder and each repayment of a
Gross-Up Payment required to be made by Employee to Emageon hereunder shall be paid no
later than the end of the calendar year next following the calendar year in which
Employee remits the corresponding taxes to the Internal Revenue Service, (ii) each
reimbursement of expenses related to a tax audit or litigation addressing the existence
or amount of a tax liability required to be made by Emageon to Employee hereunder and
each repayment of such a reimbursement required to be made by Employee to Emageon
hereunder shall be paid no later than the end of the calendar year next following the
calendar year in which Employee remits to the Internal Revenue Service the taxes that
are the subject of the audit or litigation or, where as a result of the audit or
litigation no taxes are due or are remitted but other reimbursable costs and/or
expenses have been incurred, the end of the calendar year following the calendar year
in which the audit is completed or there is a final and nonappealable settlement or
other resolution of the litigation, and (iii) to the extent that any portion of the
Gross-Up Payment relates to payments that were triggered by the Employee’s “separation
from service” within the meaning of Code Section 409A(a)(2)(A)(i), payment of such
portion of the Gross-Up Payment which constitutes a “deferral of compensation” within
the meaning of Code Section 409A and is not deemed to be payable upon another
permissible payment date under Code Section 409A shall be delayed until the date that
is six (6) months after the Employee’s Separation Date (provided if the Employee dies
after his Separation Date but before the Gross-Up Payment is made, it will be paid to
his estate as a lump sum and without regard to any six-month delay that otherwise
applies to specified employees).






	4.	 	Release of Claims. You hereby agree and acknowledge that by signing this Agreement,
and for other good and valuable consideration provided for in this Agreement, you are waiving
and




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	 	 	releasing your right to assert any form of legal claim against the Company1
whatsoever for any alleged action, inaction or circumstance existing or arising from the
beginning of time through the Separation Date. Your waiver and release herein is intended
to bar any form of legal claim, charge, complaint or any other form of action (jointly
referred to as “Claims”) against the Company seeking any form of relief including, without
limitation, equitable relief (whether declaratory, injunctive or otherwise), the recovery of
any damages or any other form of monetary recovery whatsoever (including, without
limitation, back pay, front pay, compensatory damages, emotional distress damages, punitive
damages, attorneys fees and any other costs) against the Company, for any alleged action,
inaction or circumstance existing or arising through the Separation Date.
	 
	 	 	Without limiting the foregoing general waiver and release, you specifically waive and
release the Company from any Claim arising from or related to your employment relationship
with the Company or the termination thereof, including, without limitation:






	 	(a)	 	Claims under any local, state or federal discrimination, fair employment
practices or other employment related statute, regulation or executive order (as they
may have been amended through the Effective Date) prohibiting discrimination or
harassment based upon any protected status including, without limitation, race,
religion, national origin, age, gender, marital status, disability, veteran status or
sexual orientation. Without limitation, specifically included in this paragraph are
any Claims arising under the federal Age Discrimination in Employment Act (the “ADEA”),
the Older Workers Benefit Protection Act, the Civil Rights Act of 1866 and 1871, Title
VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Equal Pay Act,
the Americans With Disabilities Act, the Alabama Age Discrimination Act, the Alabama
Whistleblower Protection Law and any similar Alabama or other state statute or local
law;
	 
	 	(b)	 	Claims under any other state, federal or local employment related statute,
regulation or executive order (as they may have been amended through the Effective
Date) relating to wages, hours or any other terms and conditions of employment.
Without limitation, specifically included in this paragraph are any Claims arising
under the Fair Labor Standards Act, the National Labor Relations Act, the Family and
Medical Leave Act, the Employee Retirement Income Security Act of 1974, the
Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) and any similar
Alabama or other state statute or local law;
	 
	 	(c)	 	Claims under any state, federal, local or common law theory including, without
limitation, wrongful discharge, breach of express or implied contract, promissory
estoppel, unjust enrichment, breach of a covenant of good faith and fair dealing,
violation of public policy, defamation, interference with contractual relations,
intentional or negligent infliction of emotional distress, invasion of privacy,
misrepresentation, deceit, fraud or negligence or any claim to attorneys’ fees under
any applicable statute or common law theory of recovery; and
	 
	 	(d)	 	Any other Claim arising under state, federal or local law.







 




			
	1	 	For the purposes of this section, the parties agree
that the term “Company” shall include Emageon Inc.., its divisions, affiliates,
parents and subsidiaries, and its and their respective officers, directors,
shareholders, owners, employees, attorneys, agents and assigns.




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	 	 	You explicitly acknowledge that because you are over forty (40) years of age, you have
specific rights under the ADEA, which prohibits discrimination on the basis of age, and that
the releases set forth in this section are intended to release any right that you may have
to file a claim against the Company alleging discrimination on the basis of age.
	 
	 	 	Notwithstanding the foregoing, this section does not: (x) release the Company from any
obligation expressly set forth in this Agreement or the Merger Agreement or from any
obligation, including without limitation obligations under the Workers Compensation laws,
which as a matter of law cannot be released; (y) prohibit you from filing a charge with the
Equal Employment Opportunity Commission (“EEOC”); (z) prohibit you from participating in an
investigation or proceeding by the EEOC or any comparable state or local agency.
	 
	 	 	Your waiver and release, however, are intended to be a complete bar to any recovery or
personal benefit by or to you with respect to any claim whatsoever, including those raised
through a charge with the EEOC, except those which, as a matter of law, cannot be released.
In the event that you successfully challenge the validity of the release with respect to the
ADEA, the Company or any affected party sought to be released hereunder may seek recovery
from you of all amounts paid and the cost of any benefits provided pursuant to this
Agreement. Nothing in this Agreement, however, shall limit the right of the Company or any
affected party sought to be released hereunder to seek immediate dismissal of a charge on
the basis that your signing of this Agreement constitutes a full release of any rights you
might otherwise have to pursue the charge.
	 
	 	 	As of the Separation Date, Emageon hereby releases all claims of whatever nature that it may
have against Employee which arise out of or are in any manner based upon or related to the
employment relationship between Employee and Emageon, and the conclusion of that
relationship. This waiver and release does not affect those rights or claims which arise
after its execution.
	 
	5.	 	No Guarantee of Tax Consequences. Notwithstanding any other provision of this
Agreement, except for as set forth in Section 3A hereof, Emageon makes no guarantee of any tax
consequences with respect to any payments hereunder including, without limitation, under
Section 409A of the Code.
	 
	6.	 	Other Agreements. Employee understands that the agreements that he has signed with
Emageon concerning confidentiality, non-solicitation, security, return of property, ownership
of inventions and intellectual property, and the like (including, but not limited to, the
restrictive covenants set forth in Section 7 of the Employment Agreement) are not superseded
by this Agreement, and that the terms of such agreements providing protections to Emageon or
imposing obligations on Employee following his separation from employment with Emageon shall
remain in full force and effect according to their terms after his separation from employment
with Emageon.
	 
	7.	 	No Admission. Neither this Agreement nor any act taken by Emageon or Employee
pursuant to this Agreement shall be construed as an admission of liability or wrongdoing of
any kind by Emageon or Employee.
	 
	8.	 	Confidentiality. This Agreement and all of its terms and provisions are strictly
confidential and shall not be divulged by the Employee or disclosed in any way to any person
other than the Employee’s spouse, tax advisor(s) or legal advisor(s), and the Employee will
protect the confidentiality of this Agreement in all regards. Employee agrees and understands
that a breach of this confidentiality provision will be grounds entitling Emageon to the
return of the severance payment recited in Section 3(a) hereinabove and for damages resulting
from any harm to




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	 	 	Emageon including, but not limited to, Emageon’s reasonable attorneys’ fees in connection
therewith; provided, that the restrictions imposed by this section shall not be applicable
with respect to any portion of this Agreement described in or filed as an exhibit to any
disclosure document of Emageon filed with the Securities & Exchange Commission and made
available to the general public.
	 
	9.	 	Neutral Reference. If Employee seeks an employment reference from Emageon, he should
direct any such request to the Vice-President of Human Resources for Emageon. Emageon agrees
that it will provide a neutral reference consisting only of Employee’s dates of employment and
positions held at Emageon.
	 
	10.	 	Non-Disparagement. Employee agrees not to make false, misleading or disparaging
statements regarding Emageon, its management (including individual executives or managers) or
practices, and agrees not to take any action that disrupts or impairs Emageon’s normal,
ongoing business operations, or that harms Emageon’s reputation with its employees, customers,
suppliers, or the public. Emageon agrees not to make false, misleading or disparaging
statements regarding Employee or that harms Employee’s reputation with potential employers or
the public. Employee and Emageon understand that the foregoing provision does not apply on
occasions when Employee or Emageon (or any of its directors, officers, agents, employees, or
consultants) is subpoenaed or ordered by a court or other governmental authority to testify or
give evidence and must, of course, respond truthfully, or to conduct otherwise protected by
the Sarbanes-Oxley Act.
	 
	11.	 	Indemnification. Emageon shall indemnify Employee and hold Employee harmless from and
against any claim, loss or cause of action arising from or out of Employee’s performance as an
officer, director or employee of Emageon or any of its subsidiaries or other affiliates or in
any other capacity, including any fiduciary capacity, in which Employee served at Emageon
during the term of his employment, in each case to the maximum extent permitted by law,
pursuant to Employee’s Employment Agreement, under Emageon’s Certificate of Incorporation and
By-Laws, and in accordance with Emageon’s Directors & Officers Insurance Policy (the
“Governing Documents”), provided that in no event shall the protection afforded to Employee be
less than that afforded under the Governing Documents as in effect on the initial effective
date of his Employment Agreement except for changes mandated by law.
	 
	12.	 	Entire Agreement. This document constitutes the complete and entire agreement between
the parties with respect to Employee’s termination from employment with Emageon.
Notwithstanding the foregoing statement, as provided in Section 6 of this Agreement, this
Agreement does not supersede or extinguish the covenants entered into by Employee in Section 7
of his Employment Agreement.
	 
	13.	 	Severability. If any provision of this Agreement is held invalid or unenforceable by
a court of competent jurisdiction, the other provisions of this Agreement shall remain in full
force and effect. Any provision of this Agreement held invalid or unenforceable only in part
or degree shall remain in full force and effect to the extent not held invalid or
unenforceable.
	 
	14.	 	Amendments. This Agreement shall not be modified or amended except by a writing
signed by all parties.
	 
	15.	 	Governing Law. To the extent state law is not preempted by applicable federal law,
this Agreement shall be governed by, construed and enforced in accordance with the laws of the
State of Alabama.




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	16.	 	Acknowledgments. Prior to signing this Agreement Employee acknowledges the following:
(1) he has read this Agreement, understands its meaning and intent and freely and voluntarily
agrees to its terms and conditions; (2) he has not relied on any statements or representations
made by Emageon other than those contained in this Agreement; (3) he has been advised in
writing by Emageon to consult with an attorney before signing this Agreement; (4) he has been
given 21 days from the date he received this Agreement to consider it; (5) he may revoke this
agreement within 7 days after the date that he signs it by sending written notice to the
General Counsel of Emageon at 1200 Corporate Drive, Suite 200, Birmingham, Alabama 35242,
stating his intention to revoke the Agreement; (6) if he does revoke this Agreement, neither
Emageon nor Employee will be bound by any of the obligations stated in this Agreement or have
any rights under this Agreement; and (7) this Agreement does not become effective (the
“Effective Date”) until the day after his right to revoke has expired.





[SIGNATURE PAGE FOLLOWS]




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Emageon, by and through its duly authorized officers, and Employee have caused this Agreement to be
executed on the date(s) set forth below.




	 	 	 	 	 	 	 	 	 
	Employee:	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	/s/ Charles A. Jett, Jr.	 	 	 	February 23, 2009	 	 
	 
	 	 	 	 
	 	 
	Charles A. Jett, Jr.	 	 	 	Date	 	 
	 
	 	 	 	 	 	 	 	 
	Emageon:	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	EMAGEON INC.	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	By:
	 	/s/ John W. Wilhoite 	 	 	 	February 23, 2009 	 	 
	 

	 	 

	 	 
	 	 

	 	 
	 

	 	John W. Wilhoite
	 	 	 	Date	 	 
	 

	 	Its: Chief Financial Officer	 	 	 	 	 	 







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