1
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into as of the _______ day of ______,
1997, by and between Physician Reliance Network, Inc., a Texas corporation (the
"Company"), and _____________________ (the "Employee").
WHEREAS, the Employee is currently an employee "at will"; and
WHEREAS, the Company and the Employee desire to modify the Employee's
employment status and to set forth in an agreement the terms and conditions of
such employment;
NOW, THEREFORE, in consideration of the premises hereof and of the
mutual promises and agreements contained herein, the parties hereto, intending
to be legally bound, hereby agree as follows:
1. EMPLOYMENT AND TERM OF EMPLOYMENT. The Company hereby agrees to
employ the Employee, and the Employee hereby agrees to serve the Company, on
the terms and conditions set forth herein, for the period commencing as of the
date set forth above and expiring on , _____ (the "Expiration
Date"), unless further extended or sooner terminated as hereinafter set forth.
Commencing , _____, and on the first day of October each year
thereafter, this Agreement shall automatically extend for one additional year
unless prior to such first day of _________ the Company shall have delivered to
the Employee written notice that the term of this Agreement will not be
extended. Further, the term of this Agreement shall automatically extend for a
period of two years after a "Change of Control". For purposes of this
Agreement, a "Change of Control" shall be deemed to have taken place if: (i)
any person or entity, including a "group" as defined in Section 13(d)(3) of the
Securities Exchange Act of 1934, other than the Company, a wholly-owned
subsidiary thereof, any employee benefit plan of the Company or any of its
subsidiaries, or Texas Oncology, P.A.
2
becomes the beneficial owner of the Company's securities having 25% or more of
the combined voting power of the then outstanding securities of the Company
that may be cast for the election of directors of the Company (other than as a
result of an issuance of securities initiated by the Company in the ordinary
course of business); (ii) as the result of, or in connection with, any cash
tender or exchange offer, merger or other business combination, sale of all or
substantially all of the assets of the Company, or any combination of the
foregoing transactions, less than seventy-five percent (75%) of the combined
voting power of the then-outstanding securities of the Company or any successor
corporation or entity entitled to vote generally in the election of the
director(s) of the Company or such other corporation or entity after such
transaction are held in the aggregate by the holders of the Company's
securities entitled to vote generally in the election of directors of the
Company immediately prior to such transaction; or (iii) the Company shall sell
all or substantially all of its assets to another entity which is not a
subsidiary of the Company. A new Expiration Date is created each time the term
of this Agreement is extended.
2. POSITIONS AND DUTIES. The Employee shall serve, in name and in
fact, as the ______________________ of the Company and shall have such powers
and duties as are customarily associated with such position. These duties
include, among others, assisting in the development of the Company's business
in the continental United States. The Employee shall devote substantially all
his working time and efforts to the business and affairs of the Company, shall
use his best efforts to advance the best interests of the Company, and shall
not engage in outside business activities which interfere with the performance
of his duties hereunder. The Employee agrees to serve without additional
compensation in one or more offices or as a director of any of the Company's
subsidiaries or affiliates.
3. COMPENSATION.
a. BASE SALARY. The Employee shall receive a base salary of
the rate of $___________ per annum as may be increased from time to time
("Base Salary"), payable in substantially equal periodic payments, which
shall be made no less frequently than monthly during the period of the
Employee's employment hereunder. The Base
3
Salary shall be subject to periodic review and revision by the ________
of the Company but shall not be decreased during the term of employment
hereunder.
b. INCENTIVE COMPENSATION. In addition to Base Salary, the
Employee shall be entitled to receive such bonus or incentive
compensation payments as the ____________________________ in his sole
discretion may determine from time to time.
c. STOCK OPTIONS. In addition to Base Salary and Incentive
Compensation, the Employee shall be entitled to receive stock options as
the Board of Directors in its sole discretion may determine.
d. EXPENSES. During the term of his employment hereunder,
the Employee shall be entitled to be reimbursed (in accordance with the
policies and procedures established by the Board of Directors for
Company officers) for all reasonable expenses incurred by him in
performing services hereunder, provided that the Employee properly
accounts therefore in accordance with Company policy.
e. PARTICIPATION IN BENEFIT PLANS. The Employee shall be
entitled to participate in or receive benefits under all the Company's
employee benefit plans and arrangements in effect on the date hereof or
made available in the future to the officers and key employees of the
Company.
4. TERMINATION.
a. DISABILITY. If, as a result of the Employee's incapacity
due to physical or mental illness, the Employee shall have been absent
from his duties hereunder on a full time basis for ninety (90)
consecutive days, the Company may terminate its obligations hereunder,
except for those obligations provided for in the second sentence of
Section 5(a) hereof.
4
b. TERMINATION UPON DEATH. If the Employee should die during
the term of the Agreement, the Company's obligations under this
Agreement shall cease, except for those obligations set forth in Section
5(b) hereof, and the Employee's employment shall be terminated.
c. TERMINATION BY THE COMPANY. The Company may terminate the
Employee's employment hereunder at any time for Cause or for any other
reason. For the purposes of this Agreement, "Cause" shall mean any act
that is materially inimical to the best interests of the Company and
that constitutes on the part of the Employee personal dishonesty,
willful misconduct, breach of fiduciary duty, intentional failure to
perform stated duties of an Employee of the Company, willful violation
of any law, governmental rule or regulation ( other than traffic
violations or similar offenses) or final cease and desist order, or
material breach of this Agreement, determined on a reasonable basis.
d. TERMINATION BY THE EMPLOYEE. The Employee may terminate
his employment hereunder upon 60 days written notice for any reason.
e. DETERMINATION OF DISABILITY. For purposes of Section 4(a)
of this Agreement, the determination of whether the Employee is disabled
due to physical or mental illness shall be made by a licensed physician
reasonably satisfactory to the Employee and to the Company.
f. NOTICE OF TERMINATION. Any termination by the Company
pursuant to subsection (a) or (c) above or by the Employee pursuant to
subsection (d) above shall be communicated by written notice of
termination to the other party hereto.
g. EFFECT OF TERMINATION. Termination of employment under
this Section 4 only terminates the employment facets of this Agreement,
and such termination of employment shall not relieve Employee of
Employee's obligations under Section 7 of this Agreement.
5
5. COMPENSATION UPON TERMINATION OR DURING DISABILITY.
a. During any period in which the Employee fails to perform
his duties hereunder as a result of disability due to physical or mental
illness, the Employee shall receive an amount which, when added to any
disability benefits provided for by the Company, equals his Base Salary
until the compensation and benefits received by the Employee pursuant to
this Agreement are terminated pursuant to Section 4(a) hereof, or until
the Employee terminates his employment pursuant to Section 4(d) hereof,
whichever first occurs. Following termination by the Company due to
disability, the Employee shall receive such benefits and be paid such
amounts as he is entitled to receive under the Company's disability and
other benefits plans then in effect.
b. If the Employee's employment shall be terminated for Cause
or if the Employee dies or if the Employee terminates his employment for
any reason, the Company shall pay the Employee his Base Salary earned
through the date on which his employment is terminated. The Company
shall then have no further obligations to the Employee under this
Agreement.
c. If the Company shall terminate the Employee's employment
under this Agreement for any reason other than pursuant to Section 4(a)
or for Cause pursuant to Section 4(c) hereof, then, subject to the
compliance by the Employee with the provisions of Section 7 hereof, the
Company shall pay the Employee, as liquidated damages or severance or
both, his Base Salary payable in substantially equal periodic payments
no less frequently than monthly for a period ending on the Expiration
Date. The Employee shall be entitled to no compensation after the
Employee terminates his employment pursuant to Section 4(d).
Notwithstanding the preceding sentence, if (i) the Employee terminates
his employment within the 180-day period following a Change of Control,
or (ii) the Employee terminates his employment following a material
diminution of his duties, responsibilities or authority, then the
Employee shall be entitled to receive his Base Salary payable in
substantially equal periodic payments no less frequently than
6
monthly for a period ending on the Expiration Date provided the Employee
complies with the provisions of Section 7 hereof.
6. BINDING AGREEMENT. This Agreement and all obligations of the
Company hereunder shall be binding upon the successors and assigns of the
Company. This Agreement and all rights of the Employee hereunder shall inure
to the benefit of and be enforceable by the Employee's personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees.
7. CONFIDENTIAL INFORMATION AND NONCOMPETITION.
a. TRADE SECRETS. Employee, prior to and during the term of
employment under this Agreement, has and will have access to and become
familiar with various confidential information and trade secrets,
including without limitation, the names and addresses of the Company's
customers, certain customer lists, other information concerning the
contracting systems of the Company, and other unique processes,
procedures, services and products of the Company which are regularly
used in the operation of the business of the Company (collectively, the
"Confidential Information"). Employee shall not disclose any of the
Confidential Information, directly or indirectly, nor use it in any way,
either during the term of this Agreement or at any time thereafter,
except as required in the course of employment with the Company. All
files, records, documents, drawings, graphics, specifications, equipment
and similar items relating to the business of the Company, whether
prepared by Employee or otherwise coming into Employee's possession,
shall remain the exclusive property of the Company and shall not be
removed from the premises of the Company without the prior written
consent of the Company unless removed in relation to the performance of
Employee's duties under this Agreement. Any such files, records,
documents, drawings, graphics, specifications, equipment and similar
items, and any and all copies of such materials which have been removed
from the premises of the Company, shall be returned by Employee to the
Company.
7
b. NONCOMPETITION. Employee acknowledges that Employee
will have access to the Confidential Information, the unauthorized use
or disclosure of which would cause irreparable injury to the Company.
In consideration for access to the Confidential Information, the
Company's entering into this Agreement, the substantial compensation
paid or to be paid to Employee by the Company, and the other benefits
received by employee hereunder, Employee agrees as follows:
i. during Employee's employment with the Company under
this Agreement and for a period of one (1) year after the
resignation, discharge or otherwise, Employee shall not, directly
or indirectly, either as an employee, employer, consultant,
agent, principal, partner, stockholder, corporate officer,
director or in any other individual or representative capacity,
own, engage or participate in any business that is in competition
with the principal business of the Company or any subsidiary of
the Company (provided that ownership of five percent (5%) or less
of the voting stock of any publicly held corporation shall not
constitute a violation hereof) within the continental United
States; and
ii. for a period of one (1) year after the date of
termination of Employee's employment hereunder, whether by
resignation, discharge or otherwise, Employee shall not either
directly or indirectly call on, solicit, or take away, or attempt
to call on, solicit, or take away any of the customers of the
Company, either for himself or for any other person, firm, or
corporation; and
iii. for a period of one (1) year after the date of
termination of Employee's employment hereunder, whether by
resignation, discharge or otherwise, Employee shall not either
directory or indirectly call on, solicit, or take away, or
attempt to call on, solicit, or take away any of the customers of
the Company, either for himself or for any other person, firm, or
corporation.
c. REASONABLENESS OF RESTRICTIONS. Employee acknowledges
that the time and geographical restrictions set forth in Section 7(b) of
this Agreement are reasonable in
8
scope and necessary for the protection of the business and good will of
the Company. Employee agrees that should any portion of the covenants
in Section 7 be unenforceable because of the scope thereof or the period
covered thereby or otherwise, the covenant shall be deemed to be reduced
and limited to enable it to be enforced to the extent permissible under
the laws and public policies applied in the jurisdiction in which
enforcement is sought.
d. SOLICITING EMPLOYEES. Employee shall not during the term
of this Agreement or for a period of one (1) year after termination of
Employee's employment hereunder for any reason, whether by wrongful
discharge or otherwise, either directly or indirectly, enter into
agreement with, or solicit the employment of, employees of the Company
for the purpose of causing them to leave the employment of the Company
or take employment with any business that is in competition in any
manner whatsoever with the business of the Company.
e. OWNERSHIP OF RECORDS. All records of the accounts of the
Company and its customers and any other records and books relating in
any manner whatsoever to the Company or its customers, whether prepared
by Employee or otherwise coming into Employee's possession, shall be the
exclusive property of the Company regardless of who actually purchased
the original book or record.
f. INJUNCTIVE RELIEF; EXTENSION OF RESTRICTIVE PERIOD. In
the event of a breach of any of the covenants contained in this Section
7, it is understood that the Company would be irreparably harmed and
that monetary damages will be difficult to ascertain and an inadequate
remedy in favor of the Company, and the Company may petition a court of
law or equity for injunctive relief in addition to any other relief
which the Company may have under the law, including but not limited to
reasonable attorneys' fees. If Employee violates the covenants and
restrictions contained in this Section 7 and the Company brings an
action for injunctive or other equitable relief, the Company shall not
be deprived of the benefit of the full period of the restrictive
covenant as a result of the time involved in obtaining such relief.
Accordingly, Employee agrees that the
9
covenant not to compete and other restrictive covenants shall continue
in effect for a period commencing on the date of a final judgment (after
all appeals) of a court of competent jurisdiction enjoining Employee
from violating this Agreement and continuing for the number of full or
partial calendar months remaining in the one-year period of the
restrictive covenant as of the date Employee first violated the
covenants or restrictions of this Section 7.
g. INDEPENDENT AGREEMENT. All of the covenants and
provisions of this Section 7 of this agreement on the part of Employee
shall be construed as an agreement independent of any other provision of
this Agreement; and the existence of any claim or cause of action of
Employee against the Company, whether predicated on this agreement or
otherwise, shall not constitute a defense to the enforcement by the
Company of the covenants and provisions of Section 7.
h. BINDING EFFECT. The foregoing provision of this Section 7
shall be binding upon the Employee's heirs, successors and legal
representatives.
8. SPECIFIC PERFORMANCE. The Employee acknowledges and agrees that,
in the event of a breach of Section 7 or Section 8 hereof by the Employee, the
Company would be irreparably harmed and that monetary damages would be an
inadequate remedy in favor of the Company. Accordingly, the Employee and the
Company agree that in the event of such a breach, the Company shall be entitled
to injunctive relief against the Employee.
9. NOTICE. For the purposes of the 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 or mailed by United States
registered mail, return receipt requested, postage prepaid, addressed as
follows:
If to the Employee:
---------------------
---------------------
---------------------
10
If to the Company:
Physician Reliance Network, Inc.
Two Lincoln Centre
0000 XXX Xxxxxxx, Xxxxx 000, XX-00
Xxxxxx, Xxxxx 00000
Attn: General Counsel
or to such other address as any party may have furnished to the other writing
in accordance herewith, except that notices of change of address shall be
effective only upon receipt.
10. WITHHOLDING OF TAXES. The Company may withhold from any amounts
payable under this Agreement all federal, state, city or other taxes as shall
be required pursuant to any law or government regulation or ruling.
11. ENFORCEMENT OF AGREEMENT. The Corporation shall pay or reimburse
the Employee for all costs and expenses (including court costs and reasonable
attorney's fees) incurred by the Employee in connection with any litigation
seeking to enforce the Employee's rights under this Agreement, provided that
the Employee prevails in such litigation.
12. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED ACCORDING TO
THE LAWS OF TEXAS, WITHOUT GIVING EFFECT TO THE PRINCIPLES OF CONFLICTS OF LAWS
OF SUCH STATE.
13. AMENDMENT; MODIFICATION; WAIVER. This Agreement may be amended
only by the written agreement of the parties hereto. No provisions of this
Agreement may be modified, waived or discharged unless such waiver,
modification or discharge is agreed to in writing signed by Employee and the
Company. This Agreement will be reviewed on an annual basis by the parties
hereto and the term of the Agreement may be extended by mutual agreement of the
parties. No waiver by either party hereto at any time of any breach by the
other party hereto or compliance with any condition or provision of this
Agreement to be performed by
11
such other party shall be deemed a waiver of similar or dissimilar provisions
or conditions at the same or at any prior or subsequent time.
14. BINDING EFFECT.
a. This Agreement is personal in nature and neither of the
parties hereto shall, without the consent of the other, assign, transfer
or delegate this Agreement or any rights or obligations hereunder except
as expressly provided for herein. Without limiting the generality of
the foregoing, Employee's right to receive payments hereunder shall not
be assignable, transferable or delegable, whether by pledge, creation of
a security interest or otherwise, other than by a transfer by his will
or by the laws of descent and distribution and, in the event of any
attempted assignment or transfer contrary to this paragraph, the Company
shall have no liability to pay any amount so attempted to be assigned,
transferred or delegated.
b. The Company and Employee recognize that each party will
have no adequate remedy at law for breach by the other of any of the
agreements contained herein and, in the event of any such breach, the
Company and Employee hereby agree and consent that the other shall be
entitled to a decree of specific performance, mandamus or other
appropriate remedy to enforce performance of the Agreement.
15. ENTIRE CONTRACT. This Agreement constitutes the entire agreement
and supersedes all other prior agreements, employment contracts and
understandings, both written and oral, express or implied with respect to the
subject matter of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
EMPLOYEE: PHYSICIAN RELIANCE NETWORK, INC.
By:
----------------------------
Title:
----------------------------------- ----------------------------
[Name]
