EMPLOYMENT AGREEMENT
Exhibit 10.1
THIS EMPLOYMENT AGREEMENT (this “Agreement”) is made and entered into as of March 30, 2022 (the “Signing Date”), between ATI Physical Therapy, Inc. (the “Company”) and Xxxxxx X. Xxxxx (“Employee”).
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RECITALS.
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1.1 Employee
and the Company are entering into this Agreement to set forth the terms and conditions of Employee’s employment with the Company or its affiliate and to protect the Company’s Trade Secrets or Confidential Information and business relationships.
The Company or its affiliate hereby employs Employee and Employee hereby accepts employment with the Company or its affiliate upon the terms and conditions contained in this Agreement.
1.2 As an
executive officer of the Company, Employee will have access to and Employee will become familiar with, acquire knowledge of and develop or maintain the Company’s Trade Secrets or Confidential Information (as defined below) and business
relationships, whether currently existing or to be developed in the future, which Employee recognizes permits the Company to enjoy a competitive advantage and disclosure and/or use by competitors, potential competitors and/or any third-party
would cause irreparable harm to the Company.
NOW, THEREFORE, IN CONSIDERATION of the foregoing
facts, the mutual covenants and agreements contained herein, the compensation to be paid in connection with Employee’s continued employment,
and other good and valuable consideration, the Company and Employee agree as follows:
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DEFINITIONS.
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2.1 Affiliate: “Affiliate” means, with respect to any party, any corporation, limited liability company, partnership, joint venture, firm and/or other entity
which Controls, is Controlled by or is under common Control with such party.
2.2 Board
of Directors: “Board of Directors” shall mean the board of directors of the Company.
2.3 Business:
“Business” means the business of providing physical therapy and/or occupational therapy services, including, without limitation, physical therapy, work conditioning, functional capacity assessment or
sports performance enhancement, home healthcare, and occupational health services, and any other business engaged in or service rendered by the Company upon the Effective Date, during the Initial Term, and/or during any Renewal Term.
2.4 Change
in Control: “Change in Control” shall have the meaning set forth in the Company’s 2021 Equity Incentive Plan, as amended from time to time.
2.5 [RESERVED]
2.6 Compensation
Committee: “Compensation Committee” shall mean a committee of the Board of Directors which has been delegated responsibility for employee compensation matters or, in the absence thereof, the entire
Board of Directors.
2.7 Control:
“Control” means (i) in the case of a corporate entity, direct or indirect ownership of at least fifty percent (50%) of the stock or securities entitled to vote for the election of directors; and (ii) in
the case of a non-corporate entity (such as a limited liability company, partnership or limited partnership), either (A) direct or indirect ownership of at least fifty percent (50%) of the equity interests in such entity, or (B) the power to
direct the management and policies of such entity.
2.8 Covered
Entity: “Covered Entity” means every Affiliate of Employee, and every business, association, trust, corporation, partnership, limited liability company, proprietorship or other entity in which
Employee has an investment (whether through debt or equity securities), or maintains any capital contribution or made any outstanding advances to, or in which any Affiliate of Employee has an ownership interest or profit sharing percentage, or a
firm from which Employee or any Affiliate of Employee receives or is entitled to receive income, compensation or consulting fees in which Employee or any Affiliate of Employee has an interest as a lender (other than solely as a trade creditor for
the sale of goods or provision of services that do not otherwise violate the provisions of this Agreement). The agreements of Employee contained herein specifically apply to each entity which is presently a Covered Entity (so long as it remains
a Covered Entity) or which becomes a Covered Entity subsequent to the date of this Agreement.
2.9 Discharge
For Cause: “Discharge For Cause” shall mean termination of employment for any one or more of the following: (i) willful misfeasance or nonfeasance by Employee with respect to Employee’s assigned
duties, which includes not following the reasonable written direction of the Board of Directors or any committee thereof (other than by reason of Permanent Disability), or repeated intentional refusal by Employee to perform Employee’s assigned
duties (other than by reason of Permanent Disability) which in each case continues uncured for thirty (30) days following receipt of written notice from the Board of Directors or the Compensation Committee thereof; (ii) such Employee personally
engaging in illegal conduct or any act of moral turpitude (other than minor traffic violations) which reasonably could be expected to harm the Company; (iii) such Employee breaching in any material respect any provision of this Agreement (other
than by reason of Permanent Disability) which continues uncured for thirty (30) days following receipt of written notice of such breach from the Board of Directors or the Compensation Committee thereof, except that any breach of Sections 4.7 or
4.9 shall not require either written notice or an opportunity to cure; or (iv) such Employee’s commencement of employment with another company while he is an employee of the Company without the prior consent of the Board of Directors, other than
with respect to Permitted Activities.
2.10 Discharge
Without Cause: “Discharge Without Cause” shall mean the Company’s termination of Employee’s employment hereunder during the term hereof or non-renewal of the Employee’s employment pursuant to Section
4.1 for any reason other than a Discharge For Cause or due to Employee’s death or Permanent Disability.
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2.11 Effective
Date: “Effective Date” shall mean the date of Employee’s commencement of employment with the Company on or about April 28, 2022.
2.12 [RESERVED]
2.13 Permanent
Disability: “Permanent Disability” shall mean the Employee’s inability, with or without reasonable accommodation, to perform the essential duties, responsibilities, and functions of Employee’s
position with the Company as a result of any mental or physical disability or incapacity for a length of time that the Company determines is sufficient to satisfy such obligations as it may have to provide leave under applicable family and
medical leave laws and/or “reasonable accommodation” under applicable federal, state or local disability laws. Family and medical leave or disability leave provided under federal, state or local law may be unpaid as per the requirements of such
laws; provided, however, that the Employee shall be entitled to such payments and benefits under the Company’s vacation, sick leave or disability leave programs as per the terms of such programs. The Company may terminate the Employee’s active
employment because of a Permanent Disability by giving written notice to the Employee at any time effective at or within 20 days after the end period of leave as may be required under the family and medical leave laws or under federal, state or
local disability laws, but the Company shall retain the Employee as an inactive employee if necessary to maintain the Employee’s eligibility for any disability leave benefits. A reassignment, reduction or elimination of the duties defined in
Section 3.1 because of Employee’s inability to perform such duties during any period of a disability leave or during the period Employee is designated as an inactive employee, or the appointment of a temporary or permanent replacement for
Employee during any disability leave, shall not constitute the basis for a Termination for Good Reason. In the event of a dispute over the occurrence of a Permanent Disability, the Employee agrees to submit to an examination by a doctor selected
by the Company who will determine fitness for duty. If the Employee’s physician disagrees with the Company’s physician’s opinion, a third physician, mutually agreed upon by the Employee and the Company, shall examine the Employee and that
physician’s opinion shall be conclusive as to the Employee’s fitness for duty.
2.14 Permitted
Activities: “Permitted Activities” shall mean Employee’s service on charitable or civic boards, service on behalf of charitable organizations or foundations, supervision of passive investments, or
the professional activities enumerated in Exhibit B, in each case, which do not, individually or in the aggregate, interfere with the performance of Employee’s duties hereunder.
2.15 Subsidiary:
“Subsidiary” shall mean any corporation, trust, general or limited partnership, limited liability company, limited liability partnership, firm, company or other business enterprise which is Controlled by
the Company thorough direct ownership of the stock or other proprietary interests of such business enterprise or indirectly through the ownership of stock or other proprietary interests in one (1) or more other business enterprises which are
connected with the Company by means of one (1) or more chains of business enterprises that are connected by ownership of stock or other proprietary interests.
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2.16 Termination
For Good Reason: “Termination For Good Reason” shall mean voluntary termination of this Agreement by Employee if, without the prior written consent of Employee: (i) there is a reduction by the
Company in Employee’s annual salary or percentage target bonus opportunity then in effect; (ii) the Company acts in any way that would adversely affect Employee’s participation in or materially reduce Employee’s benefit under any benefit plan of
the Company in which Employee is participating, except those changes generally affecting similarly situated employees of the Company; (iii) the Company materially breaches the terms of this Agreement; or
(iv) there is a material diminution of Employee’s job title, reporting relationship or job duties or responsibilities that are materially inconsistent with the position or positions listed in Section 3.1. Notwithstanding the foregoing, none of
the circumstances described above may serve as the basis for a “Termination for Good Reason” unless (x) Employee notifies the Board of Directors in writing of any event constituting the basis for a “Termination for Good Reason” within thirty (30)
days following Employee’s knowledge of the initial existence of such circumstance and (y) the Company fails to cure such circumstance within thirty (30) days following such written notice. Failing such cure, a Termination for Good Reason shall
be effective on the day following the expiration of such cure period.
2.17 Territory:
“Territory” means the United States.
2.18 Trade
Secrets or Confidential Information: “Trade Secrets” means information, without regard to form, including, but not limited to, technical or nontechnical data, a formula, a pattern, a compilation, a
program, a device, a method, a technique, a drawing, a process, a prototype, financial data, financial plans, product plans, or a list of actual or potential customers or suppliers which is not commonly known by or available to the public and
which information: (A) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (B) is the
subject of efforts that are reasonable under the circumstances to maintain its secrecy. Trade Secrets also include any information or data described above that the Company obtains from another party and that the Company treats as proprietary or
designates as a Trade Secrets, whether or not owned or developed by the Company. “Confidential Information” means any data or information, without regard to form, other than Trade Secrets, that is valuable
to the Company and is not generally known by the public. To the extent consistent with the foregoing, Trade Secrets or Confidential Information includes, but is not limited to: (a) the names, addresses, phone numbers, accounts, financial
information, and other information concerning patients, referral sources, payors (employers, managed care organizations, workers compensation insurers, and other types of payors) and other clients of the Company; (b) non-public information and
materials describing or relating to the Company’s business or financial affairs, including but not limited to financial and/or investment performance information, personnel matters, products, operating procedures, organizational responsibilities,
marketing matters, or policies or procedures of the Company; or (c) information and materials describing the Company’s existing or new products and services, including analytical data and techniques, and product, service or marketing concepts
under development at or for the Company, and the status of such development. Trade Secrets or Confidential Information does not include information that, other than as a result of a breach by Employee of this Agreement, (i) is or becomes
generally known within the relevant industry, or (ii) is or becomes known to Employee other than through Employee’s work for the Company, or (iii) is or becomes generally available to the public.
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CAPACITIES AND DUTIES; INDEMNIFICATION.
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3.1 Title:
As of the Effective Date, Employee will be employed in the capacity of Chief Executive Officer of the Company. Employee shall report directly to the Board of Directors and shall be subject to its supervision, control and direction. Employee will
at all times abide by the Company’s written personnel policies applicable to similarly situated employees of the Company as in effect from time to time and previously provided to Employee, and will faithfully, industriously and to the best of
Employee’s ability, experience and talents perform all of the duties that may be required of and from Employee pursuant to the terms hereof, consistent with Employee’s status as Chief Executive Officer.
3.2 Exclusive
Services: During the Term, Employee agrees to devote Employee’s best efforts and full business time to rendering services to the Company, except with respect to Permitted Activities. Employee is specifically restricted from being employed
by any other company, other than a Subsidiary or an Affiliate of the Company, while under the Company’s employ pursuant to this Agreement. Employee shall not be entitled to any additional compensation for services rendered as an officer or
director of the Company or any of its Affiliates.
3.3 Indemnification:
The Company shall, to the maximum extent permitted by law, indemnify and hold harmless Employee for any loss, injury, damage, expense (including reasonable attorneys’ fees, and costs), and claim or demand, arising out of, connected with, or in
any manner related to, any act, omission, or decision made in good faith while performing services for the Company from and after the Effective Date.
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TERM.
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4.1
Term: Subject to Sections 4.2, 4.3, 4.4, 4.5 and 4.6 the term of this Agreement shall be three (3) years commencing on the Effective Date, unless terminated earlier pursuant to the terms herein (the “Initial Term”); provided that, unless
earlier terminated pursuant to the terms herein, the Initial Term shall be automatically extended for additional one (1) year terms (each, a “Renewal Term”) upon the expiration of the Initial Term or any such Renewal Term unless the Company or
Employee delivers to the other at least thirty (30) days prior to the expiration of the Initial Term or the then-current Renewal Term, as the case may be, a written notice specifying that the term of Employee’s employment will not be
renewed at the end of the Initial Term or the then-current Renewal Term, as the case may be. The Initial Term or, in the event that Employee’s employment hereunder is terminated earlier pursuant to the terms herein or renewed pursuant to this
Section 4.1, such shorter or longer period, as the case may be, is referred to herein as the “Term.” Upon termination of the Term for any reason, Employee agrees to resign, or will be deemed to resign, as of the date of termination or such other
date requested by the Company, from all positions and offices that Employee then holds with the Company and its Affiliates.
4.2 Discharge
For Cause: Employee’s employment under this Agreement may be terminated by the Company (subject to the notice and cure period set forth in Section 2.9, if applicable) upon the Board of Directors specifically finding that an action
constituting the basis for a Discharge for Cause has occurred, without further obligation by the Company, except for payment of any base salary compensation and expense reimbursement accrued and unpaid through the effective date of termination
and except as otherwise required by law, upon written notice to Employee of a Discharge For Cause. The Company shall provide Employee in such written notification such facts as shall be reasonably necessary to apprise Employee of the basis for
such Discharge For Cause of which the Company is actually aware and for Employee to exercise Employee’s right to cure under Section 2.9, if applicable.
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4.3 Discharge
Without Cause: Employee’s employment under this Agreement may be immediately terminated by the Company upon written notice to Employee of a Discharge Without Cause.
(a) Upon termination pursuant to this
Section 4.3 at any time other than during the 24-month period following a Change in Control, the Company shall (i) pay to Employee an amount equal to 1.5 (one and a half) times the sum of (x) Employee’s base salary, as provided in Section 5.1, at
the annual rate in effect at the time of termination, and (y) the Target Bonus, in substantially equal installments over a period of eighteen (18) months from the date of such termination, in accordance with the Company’s general payroll
practices as the same may exist from time to time, (ii) pay to Employee an annual bonus for the then-current fiscal year based on actual performance for such year, pro-rated from the first date of such fiscal year through Employee’s last date of
continued active employment, payable at the same time as annual bonuses are paid other senior executives of the Company (the “Annual Bonus”, and (iii) if continued coverage under the Company’s health and
welfare plans is timely elected by Employee, pay the employer and employee portion of any COBRA health and welfare premiums for a period equal to eighteen (18) months from the date of such termination, or, if earlier, (x) the first date that
Employee is no longer eligible for COBRA or (y) the first date that Employee becomes eligible for health benefits from another employer.
(b) Upon termination pursuant to this
Section 4.3 during the 24-month period following a Change in Control, the Company shall (i) pay to Employee an amount equal to 2.0 (two) times the sum of (x) Employee’s base salary, as provided in Section 5.1, at the annual rate in effect at the
time of termination, and (y) the Target Bonus, in a lump sum on the first payroll date following the date the release contemplated by this Section 4.3 (described below) becomes effective and irrevocable, (ii) pay to Employee an Annual Bonus for
the then-current fiscal year based on actual performance for such year, pro-rated from the first date of such fiscal year through Employee’s last date of continued active employment, payable at the same time as annual bonuses are paid other
senior executives of the Company, (iii) if continued coverage under the Company’s health and welfare plans is timely elected by Employee, pay the employer and employee portion of any COBRA health and welfare premiums for a period equal to
eighteen (18) months from the date of such termination, or, if earlier, (x) the first date that Employee is no longer eligible for COBRA or (y) the first date that Employee becomes eligible for health benefits from another employer, and (iv) all
prior unvested grants of equity incentive compensation made to Employee pursuant to the Company’s 2021 Equity Incentive Plan as of the date of such termination.
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In addition to the foregoing, the Company shall pay to Employee within thirty (30) days of termination of employment all amounts of base salary compensation and
expense reimbursements accrued but unpaid through the effective date of termination. Other than the foregoing, Employee shall not be entitled to any payment for subsequent periods upon Employee’s termination of employment upon a Discharge Without
Cause. As a condition to receiving severance payments and benefits under this Section 4.3, Employee shall execute a release of claims in the form attached hereto as Exhibit A. Notwithstanding anything in this Agreement to the contrary,
receipt of severance payments and benefits under this Section 4.3, shall be subject to the execution (and expiration of any applicable revocation period) of the release within sixty (60) days following termination (the “Release Period”) and the first severance payment shall be made, inclusive of any amounts that would otherwise have been paid prior to such date, on the first payroll date following the date the release becomes effective and
irrevocable; provided, that if the Release Period spans two tax years, the first severance payment shall be made in the second tax year.
4.4 Termination
For Good Reason: Employee’s employment under this Agreement may be terminated by Employee, subject to the notice and time limitations set forth in Section 2.16, upon written notice to the Company of a Termination For Good Reason.
(a) Upon termination pursuant to this
Section 4.4 at any time other than during the 24-month period following a Change in Control, the Company shall provide to Employee the severance payments and benefits set forth in Section 4.3(a); provided, however, if Employee
terminates Employee’s employment pursuant to Section 2.16(iv) (there is a material diminution of Employee’s job title, reporting relationship or job duties or responsibilities that are materially inconsistent with the position or positions listed
in Section 3.1), the Company shall also provide to Employee all prior unvested grants of equity incentive compensation made to Employee pursuant to the Company’s 2021 Equity Incentive Plan as of the date of such termination.
(b) Upon termination pursuant to this
Section 4.4 during the 24-month period following a Change in Control, the Company shall provide to Employee the severance payments and benefits set forth in Section 4.3(b).
In addition to the foregoing, the Company shall pay to Employee within thirty (30) days of termination of employment all amounts of base salary compensation and
expense reimbursements accrued but unpaid through the effective date of termination. Other than the foregoing, Employee shall not be entitled to any payment upon Employee’s termination of employment upon a Termination For Good Reason. As a
condition to receiving severance payments or benefits under this Section 4.4, Employee shall execute a release of claims in the form attached hereto as Exhibit A. Notwithstanding anything in this Agreement to the contrary, receipt of
severance payments or benefits under this Section 4.4, shall be subject to the execution (and expiration of any applicable revocation period) of the release within the Release Period and the first severance payment shall be made, inclusive of any
amounts that would otherwise have been paid prior to such date, on the first payroll date following the date the release becomes effective and irrevocable; provided, that if the Release Period spans two tax years, the first severance
payment shall be made in the second tax year.
4.5 Termination Upon Death: Employee’s employment under this Agreement shall be immediately terminated without action or notice by
either party upon the death of Employee and without further obligation by the Company, except for payment of all amounts of base salary compensation and expense reimbursements accrued but unpaid through the effective date of termination (to be
paid to Employee within thirty (30) days of termination of employment), and except as otherwise required by law.
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4.6 Termination Upon Permanent Disability: Employee’s employment under this Agreement may be terminated by the Company, subject to the terms set forth in Section 2.12, upon written notice of a
termination for the Permanent Disability of Employee. Upon termination pursuant to this Section 4.6, the Company shall continue to pay to Employee an amount equal to Employee’s base salary, as provided in
Section 5.1, at the annual rate in effect at the time of termination, for a period equal to twelve (12) months from the date of such termination (“Permanent Disability Severance Pay”). In addition to the foregoing, the Company shall pay to
Employee within thirty (30) days of termination of employment all amounts of base salary compensation and expense reimbursements accrued but unpaid through the effective date of termination. Permanent Disability Severance Pay shall be reduced
by the amount of any disability benefits paid during and for the same period to Employee under any disability insurance policy provided by the Company as a benefit to Employee. Permanent Disability Severance Pay shall be payable over the
twelve (12) month period following termination of employment under this Section 4.6 in accordance with the Company’s general payroll practices as the same may exist from time to time. As a condition to receiving Permanent Disability Severance
Pay, Employee shall execute a release of claims in the form attached hereto as Exhibit A. Notwithstanding anything in this Agreement to the contrary, receipt of the Permanent Disability Severance Pay, shall be subject to the execution (and
expiration of any applicable revocation period) of the release within the Release Period and the first severance payment shall be made, inclusive of any amounts that would otherwise have been paid prior to such date, on the first payroll date
following the date the release becomes effective and irrevocable; provided, that if the Release Period spans two tax years, the first severance payment shall be made in the second tax year.
4.7 Non-Disclosure and Non-Use of
the Company’s Trade Secrets or Confidential Information:
(a) At all times both during employment of Employee with the Company, and after the employment relationship with the Company has
ended for any reason, Employee agrees that he will not, either directly or indirectly, and Employee will not permit any Covered Entity which is Controlled by Employee to, either directly or indirectly, (i) divulge, use, disclose (in any way or in
any manner, including by posting on the Internet), reproduce, distribute, or reverse engineer or otherwise provide the Company’s Trade Secrets or Confidential Information to any person, firm, corporation, reporter, author, producer or similar
person or entity; (ii) take any action that would make available Trade Secrets or Confidential Information to the general public in any form; (iii) take any action that uses Trade Secrets or Confidential Information to solicit any client or
prospective client of the Company; or (iv) take any action that uses Trade Secrets or Confidential Information for solicitation or marketing for any service or product or on Employee’s behalf or on behalf of any entity other than the Company with
which Employee may become associated, except (i) as required in connection with the performance of such Employee’s duties to the Company, (ii) as required to be included in any report, statement or testimony requested by any municipal, state or
national regulatory body having jurisdiction over Employee or any Covered Entity which is Controlled by Employee, (iii) as required in response to any summons or subpoena or in connection with any litigation, (iv) to the extent necessary in order
to comply with any law, order, regulation, ruling or governmental request applicable to Employee or any Covered Entity which is Controlled by Employee, (v) as required in connection with an audit by any taxing authority, or (vi) as permitted by
the express written consent of the board of directors of the Company. In the event that Employee or any such Covered Entity which is Controlled by Employee is required to disclose Trade Secrets or Confidential Information pursuant to the
foregoing exceptions, Employee shall promptly notify the Company of such pending disclosure and assist the Company (at the Company’s expense) in seeking a protective order or in objecting to such request, summons or subpoena with regard to the
Trade Secrets or Confidential Information. If the Company does not obtain such relief after a period that is reasonable under the circumstances, Employee (or such Covered Entity) may disclose that portion of the Trade Secrets or Confidential
Information which counsel to such party advises such party that they are legally compelled to disclose. In such cases, Employee shall promptly provide the Company with a copy of the Trade Secrets or Confidential Information so disclosed. This
provision applies without limitation to unauthorized use of Trade Secrets or Confidential Information in any medium, writings of any kind containing such information or materials, including books, and articles, blogs, websites, or writings of any
other kind, or film, videotape, or audiotape.
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(b) Notwithstanding Employee’s
confidentiality obligations set forth in this Section 4.7 and Section 4.8, Employee understands that, pursuant to the Defend Trade Secrets Act of 2016, Employee shall not be held criminally or civilly liable under any Federal or State trade
secret law for the disclosure of a Trade Secret that: (a) is made (1) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (2) solely for the purpose of reporting or investigating
a suspected violation of law; or (b) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. Employee understands that in the event it is determined that disclosure of the Trade Secrets
of the Company or any of its Subsidiaries or Affiliates was not done in good faith pursuant to the above, Employee shall be subject to substantial damages under federal criminal and civil law, including punitive damages and attorneys’ fees.
(c) Notwithstanding anything to the
contrary contained herein, nothing in this Agreement shall limit or interfere with Employee’s right, without notice to or authorization of the Company, to communicate and cooperate in good faith with a Government Agency for the purpose of (i)
reporting a possible violation of any U.S. federal, state, or local law or regulation, (ii) participating in any investigation or proceeding that may be conducted or managed by any Government Agency, including by providing documents or other
information, or (iii) filing a charge or complaint with a Government Agency. For purposes of this Agreement, “Government Agency” means the Equal Employment Opportunity Commission, the National Labor
Relations Board, the Occupational Safety and Health Administration, the U.S. Securities and Exchange Commission, the Financial Industry Regulatory Authority, or any other self-regulatory organization or any other federal, state or local
governmental agency or commission.
4.8 Return
of Company Property: If Employee ceases to work for the Company for any reason, Employee shall return to the Company all Company property including, but not limited to, all Trade Secrets or Confidential Information (and will not keep in
Employee’s possession, recreate or deliver to anyone else) in any form or media and all copies thereof, shall return all Trade Secrets or Confidential Information from any computers Employee owns or uses outside the Company, delete all Trade
Secrets or Confidential Information after returning such information to Company from any computers Employee owns or uses outside the Company, and shall participate in an exit interview for the purpose of ensuring that the Trade Secrets or
Confidential Information and business relationships will not be put at risk in any new position Employee may assume.
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4.9 Non-Compete
and Non-Solicitation:
Non-Competition: During the term of Employee’s employment with the Company or any Affiliate of the Company and for (x) twenty-four (24) months
after Employee’s termination, if Employee is eligible to receive severance payments and benefits under Section 4.3(b) or Section 4.4(b), or (y) eighteen (18) months after Employee’s termination, in any other circumstance or for any other reason
(the “Restricted Period”), Employee shall not directly or indirectly, whether for pay or otherwise (1) form or assist others in forming, be employed by, render services of an executive, advertising,
marketing, sales, administrative, supervisory technical, research, purchasing or consulting nature, or otherwise assist or lend Employee’s name, counsel or assistance to, any person or entity that engages in a business that competes with or intends
to compete with the Business in the Territory; or (2) be employed by or provide services of any kind to any of the following entities or their Affiliates, or their respective successors: Alliance Physical Therapy, Athletico Physical Therapy, U.S.
Physical Therapy Inc., XXXX Health Services, PT Solutions, Professional Physical Therapy, Upstream Rehabilitation (including Benchmark Physical Therapy and Xxxxxx Physical Therapy Institute), Results Physiotherapy, Select Medical (including
Physiotherapy Associates), Team Rehabilitation, Ivy Rehab Physical Therapy, Pivot Physical Therapy, DuPage Medical Group, Illinois Bone and Joint Institute, Rock Valley Physical Therapy, Motion Physical Therapy (NY based), Phoenix Rehabilitation
and Health Services, Inc., Olympic Sports and Spine (WA based), Therapeutic Associates Physical Therapy (OR based), Golden Bear Therapy Partners, any physician-owned outpatient rehabilitation practice
with either ten (10) or more physicians or ten (10) or more locations any of which is located within twenty-five (25) miles of an ATI location, or any private-equity backed health services company offering competing ervices with ten (10) or more
locations any of which is located within twenty-five (25) miles of an ATI location.
Non-Solicitation: During the term of Employee’s employment with the Company or any Affiliate of the Company and during the Restricted Period,
Employee agrees that Employee will not, in any manner, directly or indirectly, solicit any customer or prospective customer of the Company to whom Employee provided services, with or for whom Employee transacted business, or about whom Employee
learned Trade Secrets or Confidential Information during the six (6) months prior to Employee’s termination, in each case, for the purpose of providing goods or services competitive with the Business. A “prospective customer” is any person or
entity with whom Employee has communicated or whom Employee solicited for the purposes of obtaining or transacting business and/or whom Employee has analyzed concerning potential business at any time prior to the termination of Employee’s
employment with the Company.
(i) Non-Solicitation of Employees:
During the Restricted Period, Employee agrees that he will not, in any manner, directly or indirectly, solicit, hire, attempt to solicit or attempt to hire any person who is a non-administrative (i.e.,
non-clerical) employee of the Company, or an employee under Employee’s control, in each case, during the six (6) months prior to Employee’s termination, to apply for or accept employment with any person or entity that provides goods or services
competitive with the Business, unless the Company first terminated the employment of such person.
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(ii) Employee agrees that because of
Employee’s access to the Company’s Trade Secrets and Confidential Information, such as its business model, methodologies, strategies and financial and operational information for establishing and growing its clinics, which could be unfairly used
to compete against the Company anywhere it conducts business. Employee agrees that the type and period of restrictions imposed by this Section 4.9 are fair and reasonable, particularly given the risk of probable or inevitable disclosure of Trade
Secrets and Confidential Information to any of the competitors named above, and that such restrictions are intended solely to protect the legitimate interests of the Company, rather than to prevent Employee from earning a livelihood. Employee
agrees that the payment of any severance payments or benefits under Section 4.3 or Section 4.4 is conditioned on Employee’s compliance with Section 4.7 through 4.9 and that the Company will have the right to withhold payment if Employee is in
breach of any of these sections.
(iii) If Employee resides or
works in Illinois at the time Employee enters into this Agreement, Employee acknowledges that Employee had at least fourteen (14) calendar days to consider this Agreement before accepting it, and further that the Company has advised Employee (and
Employee is again advised through this provision) to consult with an attorney before entering into the covenants set forth in this Section 4.9.
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Assignment of Inventions:
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(a) Employee has attached hereto as Exhibit C a list, if any, describing all inventions, processes, designs,
technology, information, software, illustrations, artwork, documentation, photographs, trademarks, materials, original works of authorship, and trade secrets made by him prior to the date of this Agreement that (i) belong solely to Employee or
jointly to Employee and another, (ii) relate in any way to the Company’s business or services, and (iii) are not assigned to the Company by this Agreement. If no such list is attached, there are no such Prior Inventions.
(b) Employee hereby assigns to the Company all right, title and interest throughout the world in and to any and all inventions,
processes, designs, technology, information, software, illustrations, artwork, documentation, photographs, trademarks, materials, original works of authorship, and trade secrets that Employee may solely or jointly conceive or develop or reduce to
practice during Employee’s employment by the Company that
(i) pertain to any business activity of the Company,
(ii) are aided by the use of time, materials, facilities, Trade Secrets, or Confidential Information of the Company, or
(iii) relate to any of Employee’s work for the Company (collectively referred to as “Inventions”).
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(c) Employee assigns to the Company all right, title and interest throughout the world to any and all intellectual property
rights associated with such Inventions, including without limitation all patents, copyrights, trademark rights, trade dress rights and trade secret rights. Employee will promptly make full written disclosure to the Company of all Inventions and
will hold all Inventions in trust for the sole right and benefit of the Company. All copyrightable works made by the Employee during Employee’s employment by the Company are and will be treated as “works made for hire” to the greatest extent
permitted by applicable law. Employee’s assignment of Inventions under this Section 4.10 includes Inventions created during Employee’s employment by the Company prior to the date of this Agreement, if any.
(d) Moral Rights. Employee’s assignment to the Company of Inventions hereunder includes (i) all rights of attribution,
paternity, integrity, disclosure and withdrawal, (ii) any rights Employee may have under the Visual Artists Rights Act of 1990 or similar federal, state, foreign or international laws or treaties, and (iii) all other rights throughout the world
sometimes referred to as "moral rights" (collectively "Moral Rights"). To the extent that Moral Rights cannot be assigned under applicable law, Employee hereby waives such Moral Rights to the extent permitted under applicable law and consents to
any and all actions of the Company that would otherwise violate such Moral Rights.
(e) Employee will assist the Company to secure its rights in the Inventions and any copyrights, patents, trademarks, or other
intellectual property rights relating thereto in any and all countries. If the Company is unable for any reason to secure Employee’s signature to apply for or to pursue any application for any United States or foreign patents or copyright
registrations covering Inventions assigned to the Company, then Employee hereby irrevocably designates and appoints the Company and its duly authorized officers as Employee’s agent and attorney in fact, to act for and in Employee’s behalf to
execute and file any such applications and to do all other lawfully permitted acts to further the application for, prosecution, issuance, maintenance or transfer of letters patent or copyright registrations with the same legal force and effect as
if originally executed by Employee.
(f) Limitations. Employee’s assignment of inventions under this Section 4.10 does not apply to an invention for which no
equipment, supplies, facility, or trade secret information of the Company was used and which was developed entirely on the Employee’s own time, unless:
(i) The invention relates to (1) the business of the Company, or (2) the Company’s actual or demonstrably anticipated
research or development, or
(ii) The invention results from any work performed by the Employee for the Company.
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4.11 Enforcement;
Remedies: Employee acknowledges that Employee’s expertise in the Business is of a special and unique character which gives this expertise a particular value, and that a breach of Sections 4.7, 4.8, 4.9 or 4.10 by Employee will cause
serious and potentially irreparable harm to the Company. Employee therefore acknowledges that a breach of Sections 4.7, 4.8, 4.9 or 4.10 by Employee cannot be adequately compensated in an action for damages at law, and equitable relief would be
necessary to protect the Company from a violation of this Agreement and from the harm which this Agreement is intended to prevent. By reason thereof, Employee acknowledges that the Company is entitled, in addition to any other remedies it may
have under this Agreement or otherwise, to preliminary and permanent injunctive and other equitable relief to prevent or curtail any breach of this Agreement. Employee acknowledges, however, that no specification in this Agreement of a specific
legal or equitable remedy may be construed as a waiver of or prohibition against the Company pursuing other legal or equitable remedies in the event of a breach of this Agreement by Employee. Employee’s sole and exclusive remedy in the event of
a breach of this Agreement by the Company shall be payment of the severance payments and benefits under Section 4.4. For purposes of Sections 4.7, 4.8, 4.9 or 4.10, “Company” shall specifically include ATI Physical Therapy, Inc. and its direct
and indirect parent entities, subsidiaries, successors and assigns.
4.12 Prior
Agreements. Employee represents and warrants that Employee is not a party to any non-competition agreement or other contractual limitation that would interfere with or hinder Employee’s ability to undertake the obligations and expectations
of employment with the Company. Employee represents that Employee’s performance of all of the terms of this Agreement as an employee of the Company has not breached and will not breach any agreement to keep in confidence proprietary information,
knowledge, or data acquired by Employee in confidence or trust prior to the commencement of Employee’s employment with the Company, and Employee will not disclose to the Company, or induce the Company to use, any developments, or confidential
information or material Employee may have obtained in connection with employment with any prior employer in violation of a confidentiality agreement, nondisclosure agreement, or similar agreement with such prior employer.
| 5.0 |
COMPENSATION AND BENEFITS. For Employee’s services, the Company agrees to pay Employee
compensation following the Effective Date as follows:
|
5.1 Salary:
During the Term, compensation equal to an annual salary rate of $700,000 to be paid according to the Company’s general payroll practices as same may exist from time to time. For annual periods thereafter, the Compensation Committee shall review
and may increase but not decrease Employee’s base compensation.
5.2 Annual
Incentive Compensation Program: During the Term, Employee shall be eligible for an annual discretionary performance-based bonus of 100% of base compensation at target level of achievement (the “Target Bonus”).
This bonus shall be based upon achievement of such objectives established by the Compensation Committee, which may include financial, operational, strategic and personal objectives, provided that Employee’s Target Bonus for 2022 (payable in 2023)
will be a minimum of at least $450,000. Except as expressly provided in Sections 4.3 and 4.4, Employee shall not be entitled to any bonus or other incentive compensation with respect to the calendar year in which Employee’s employment with the
Company is terminated for any reason.
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5.3 Long
Term Incentive Compensation. As soon as reasonably practicable following the Effective Date and in accordance with the Company’s regular schedule, Employee shall be granted a long-term incentive award for 2022 with a grant-date fair market
value of $1,700,000, as determined by the Compensation Committee (the “2022 LTIP Award”). The 2022 LTIP Award shall be comprised of 50% stock options on Company common shares and 50% restricted stock units
with respect to Company common shares (with the split between stock options and restricted stock units determined based on the grant date fair market value of such awards, not the number of stock options or restricted stock units granted). Such
stock options will vest in three equal tranches on the first three anniversaries of the date of grant, and such restricted stock units will vest in three equal tranches on the first three anniversaries of the date of grant. The 2022 LTIP Award
and all terms and conditions thereof shall be subject to the Company’s 2021 Equity Incentive Plan and equity award agreements thereunder. Additionally, the Compensation Committee shall grant Employee a long-term incentive award for 2023 with a
grant date fair market value of $1,700,000, with such grant being comprised of 50% stock options on Company common shares and 50% restricted stock units with respect to Company common shares (with the split between stock options and restricted
stock units determined based on the grant date fair market value of such awards, not the number of stock options or restricted stock units granted). Such stock options will vest in three equal tranches on the first three anniversaries of the date
of grant, and such restricted stock units will vest in three equal tranches on the first three anniversaries of the date of grant. Additionally, the Compensation Committee shall grant Employee a long-term incentive award for 2024 with a grant
date fair market value of $1,700,000, with such grant being comprised of 50% stock options on Company common shares and 50% restricted stock units with respect to Company common shares (with the split between stock options and restricted stock
units determined based on the grant date fair market value of such awards, not the number of stock options or restricted stock units granted). Such stock options will vest in three equal tranches on the first three anniversaries of the date of
grant, and such restricted stock units will vest in three equal tranches on the first three anniversaries of the date of grant. With respect to each year of the Term following 2024, Employee shall be eligible to receive long-term incentive
awards on terms and conditions as determined by the Compensation Committee in its discretion after consultation with a compensation consultant.
5.4 Reimbursement
of Expenses: During the Term, the Company shall reimburse Employee for any reasonable business expenses incurred by Employee in the ordinary course of the Company’s business in accordance with the Company’s reimbursement policies then in
effect. Additionally, the Company hereby agrees to provide Employee with (i) an annual allowance of up to $8,333 for tax planning services and (ii) an annual allowance of up to $5,833 for executive physicals. All such expenses shall be
substantiated by invoices and receipts, to be submitted by Employee within thirty (30) days after incurrence. In addition, Employee shall receive a cell phone allotment in accordance with the Company’s policies then in effect or shall be
provided with a Company cell phone, in the Company’s sole discretion, and shall be provided with a Company laptop computer (which shall remain the property of the Company) for use with respect to Company business. Additionally, Employee shall be
entitled to reimbursement for travel and corporate housing expenses in accordance with the Company’s corporate travel and housing policy applicable to Employee’s position as mutually agreed by Employee and the Company.
5.5 Benefits:
During the Term, Employee shall be entitled to receive all benefits of employment generally available to the Company’s other executive employees when and as such benefits, if any, become available and Employee becomes eligible for them, including
any vacation and sick leave, medical, dental, life and disability insurance benefits, long term incentive plan, pension plan and/or profit-sharing plan.
5.6 Paid
Time Off: During the Term, Employee shall be entitled to 25 business days of paid time off each year during the Term. Employee will use Employee’s reasonable efforts to schedule vacation periods to minimize disruption of the Company’s
business. Paid time off that is not utilized within the calendar year does not carry over and is not paid out. The Company will not reimburse Employee for any unused vacation.
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5.7 Withholding:
Employee authorizes the Company to make any and all applicable withholdings of federal and state taxes and other items the Company may be required to deduct, as such items may exist under this Agreement or otherwise from time to time.
6.0 CONSIDERATION:
Employee acknowledges and agrees that (a) Two Thousand Five Hundred Dollars ($2,500.00) is being paid as specific consideration for this Agreement, to supplement and not replace or eliminate the value and sufficiency of the remaining
consideration described herein; (b) the incentive benefits provided to Employee by the Company, including, but not limited to, Employee’s incentive bonus and equity eligibility (Employee’s eligibility and/or receipt of which is conditioned upon
Employee executing this Agreement); and (c) the Company’s giving Employee access to its Confidential Information (which Employee will not be provided in the absence of Employee executing this Agreement); together with the other mutual promises
and representations of the parties made herein, constitutes valuable consideration paid for the covenants under Section 4.9 which Employee otherwise is not entitled.
7.0 SUCCESSORS
AND ASSIGNS. This Agreement is intended to bind and inure to the benefit of and be enforceable by Employee, the Company and their respective heirs, successors and assigns, except that Employee shall not have any right to assign or
otherwise transfer this Agreement, or any of Employee’s rights, duties or any other interest herein to any party without the prior written consent of the Company, and any such purported assignment shall be null and void.
8.0 SURVIVAL
OF RIGHTS AND OBLIGATIONS. The rights and obligations of the parties as stated herein shall survive the termination of this Agreement.
| 9.0 |
ENTIRE AGREEMENT.
|
9.1 Sole
Agreement: This Agreement (including any attachments and exhibits hereto) contains the parties’ sole and entire agreement regarding the Employee’s employment by the Company or its Affiliates, and supersedes any and all other agreements,
statements and representations of the parties regarding Employee’s employment by the Company or its Affiliates, including but not limited to any offer letter or any other agreement regarding Employee’s base compensation, bonus or terms of
employment entered into prior to the Effective Date.
9.2 No Other
Representations: The parties acknowledge and agree that no party has made any representations (i) concerning the subject matter hereof, or (ii) inducing the other party to execute and deliver this Agreement, except those representations
specifically referenced herein. The parties have relied on their own judgment in entering into this Agreement.
10.0 MODIFICATIONS
OR WAIVERS. Waivers or modifications of this Agreement, or of any covenant, condition, or limitation contained herein, are valid only if in writing duly executed by the parties hereto.
11.0 GOVERNING
LAW. This Agreement shall be governed pursuant to the laws of the State of Delaware, without giving effect to any principles of conflicts of laws.
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12.0 SEVERABILITY.
If any part, clause, or condition of this Agreement is held to be partially or wholly invalid, unenforceable, or inoperative for any reason whatsoever, such shall not affect any other provision or portion hereof, which shall continue to be
effective as though such invalid, unenforceable or inoperative part, clause or condition had not been made. In the event that any restrictive covenant under this Agreement shall be determined by any court of competent jurisdiction to be
unenforceable by reason of its extending for too great a period of time or over too great a geographical area or by reason of its being too extensive in any other respect, it will be interpreted to extend only over the maximum period of time for
which it may be enforceable, over the maximum geographical area as to which it may be enforceable, or to the maximum extent in all other respects as to which it may be enforceable, all as determined by such court in such action.
| 13.0 |
INTERPRETATION.
|
13.1 Section
headings: The section and subsection heading of this Agreement are included for purposes of convenience only, and shall not affect the construction or interpretation of any of its provisions.
13.2 Gender
and Number: Whenever required by the context, the singular shall include the plural, the plural shall include the singular, and the masculine gender shall include the neuter and feminine genders and vice versa.
14.0 NOTICES.
All notices and other communications under or in connection with this Agreement shall be in writing and shall be deemed given (i) if delivered personally, upon delivery, (ii) if delivered by registered or certified mail (return receipt
requested), upon the earlier of actual delivery or three (3) days after being mailed, (iii) if given by overnight courier with receipt acknowledgment requested, the next business day following the date sent, or (iv) if given by telecopy, if sent
during business hours at the recipient’s location, upon confirmation of transmission by telecopy, otherwise, upon the next business day after such confirmation, in each case to the parties at the following addresses:
| To the Company: |
000 Xxxxxxxxx Xxxxxxxxx
Xxxxxxxxxxx, Xxxxxxxx 00000
Attn : General Counsel
| With a copy to: |
Weil, Gotshal & Xxxxxx, XX
|
000 Xxxxxxx Xxxxxx, 00xx xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx Xxxx
| To Employee: |
To the Employee’s current home address on file withthe Company.
|
15.0 JOINT
PREPARATION. All parties to this Agreement have negotiated it at length, and have had the opportunity to consult with and be represented by their own competent counsel. This Agreement is therefore deemed to have been jointly prepared by
the parties, and any uncertainty or ambiguity existing in it shall not be interpreted against any party, but rather shall be interpreted according to the rules generally governing the interpretation of contracts.
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16.0 THIRD-PARTY
BENEFICIARIES. No term or provision of this Agreement is intended to be, or shall be, for the benefit of any person, firm, organization or corporation not a party hereto, and no such other person, firm, organization or corporation shall
have any right or cause of action hereunder.
17.0 ARBITRATION.
Any controversy, claim or dispute involving the parties (or their affiliated persons) directly or indirectly concerning this Agreement, or the
subject matter thereof, shall be finally settled by arbitration held in Chicago, Illinois by one (1) arbitrator in accordance with the rules of employment arbitration then followed by the American Arbitration Association or any successor to the
functions thereof. The arbitrator shall apply Delaware law in the resolution of all controversies, claims and disputes and shall have the right and authority to determine how Employee’s decision or determination as to each issue or matter in
dispute may be implemented or enforced. Any decision or award of the arbitrator shall be final and conclusive on the parties to this Agreement and their respective affiliates, and there shall be no appeal therefrom other than from gross negligence
or willful misconduct. Notwithstanding the foregoing, claims of employment discrimination, worker’s compensation and unemployment compensation benefits shall not be subject to arbitration under this Agreement. The Company shall bear all costs of
the arbitrator in any action brought under this Section 17.0.
The parties hereto agree that any action to compel arbitration pursuant to this Agreement may be brought in the appropriate Illinois court and in
connection with such action to compel the laws of the State of Illinois shall control. Application may also be made to such court for confirmation of any decision or award of the arbitrator, for an order of the enforcement and for any other
remedies which may be necessary to effectuate such decision or award. The parties hereto hereby consent to the jurisdiction of the arbitrator and of such court and waive any objection to the jurisdiction of such arbitrator and court.
Notwithstanding the foregoing provisions of this Section 17.0, nothing contained herein shall be deemed to preclude any party from bringing an
action for injunctive relief in any court having jurisdiction.
18.0 COOPERATION
AND FURTHER ACTIONS. The parties agree to perform any and all acts and to execute and deliver any and all documents necessary or convenient to carry out the terms of this Agreement.
19.0 ATTORNEYS’
FEES. In the event of any dispute related to or based upon this Agreement, the prevailing party shall be entitled to recover from the other party its reasonable attorneys’ fees and costs.
20.0 COUNTERPARTS.
This Agreement may be executed in one or more counterparts, including electronically transmitted counterparts, each of which shall be deemed an original and all of which shall be considered one and the same instrument.
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21.0 CONSENT
TO JURISDICTION. Each party to this Agreement hereby (a) consents to the jurisdiction of the United States District Court for the Northern District of Illinois or, if such court does not have jurisdiction over such matter, the applicable
Illinois State or County Court that has jurisdiction, (b) irrevocably agrees that all actions or proceedings arising out of or relating to this Agreement which are not subject to arbitration as set forth in Section 17.0(i) shall be litigated in
such court and (c) consents to personal jurisdiction within the City and County of Chicago, Illinois. Each party to this Agreement accepts for itself and in connection with its properties, generally and unconditionally, the jurisdiction and
venue of the aforesaid courts and waives any defense of lack of personal jurisdiction or inconvenient forum or any similar defense, and irrevocably agrees to be bound by any non-appealable judgment rendered thereby in connection with this
Agreement.
22.0 CLAWBACK;
RECOUPMENT. Notwithstanding anything in this Agreement to the contrary, all compensation payable under this Agreement shall be subject to (i) any compensation recovery, “clawback” or similar policy, as may be in effect from time to time to
which Employee is subject and (ii) any compensation recovery, “clawback” or similar policy made applicable by law including the provisions of Section 945 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and the rules, regulations
and requirements adopted thereunder by the Securities and Exchange Commission and/or any national securities exchange on which the Company’s equity securities may be listed.
| 23.0 |
SECTION 409A PROVISIONS.
|
23.1 The parties
agree that this Agreement shall be interpreted to comply with or be exempt from Section 409A of the Code, and the regulations and authoritative guidance promulgated thereunder to the extent applicable (collectively “Code Section 409A”),
and all provisions of this Agreement shall be construed in a manner consistent with the requirements for avoiding taxes or penalties under Code Section 409A. Notwithstanding any provision of this Agreement to the contrary, in the event that the
Company determines that any amounts payable hereunder will be taxable currently to Employee under Section 409A(a)(1)(A) of the Code and related Department of Treasury guidance, the Company and Employee shall cooperate in good faith to (i) adopt
such amendments to this Agreement and appropriate policies and procedures, including amendments and policies with retroactive effect, that they mutually determine to be necessary or appropriate to preserve the intended tax treatment of the
benefits provided by this Agreement, to preserve the economic benefits of this Agreement, and to avoid less-favorable accounting or tax consequences for the Company, and/or (ii) take such other actions as mutually determined to be necessary or
appropriate to exempt the amounts payable hereunder from Code Section 409A or to comply with the requirements of Code Section 409A and thereby avoid the application of penalty taxes thereunder; provided, however, that this Section
23.1 does not create an obligation on the part of the Company to modify this Agreement and does not guarantee that the amounts payable hereunder will not be subject to interest or penalties under Code Section 409A, and in no event whatsoever
shall the Company or any of its Affiliates be liable for any additional tax, interest, or penalties that may be imposed on Employee as a result of Code Section 409A or any damages for failing to comply with Code Section 409A.
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23.2 A termination
of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits considered “nonqualified deferred compensation” under Code Section 409A upon or following a
termination of employment unless such termination is also a “separation from service” within the meaning of Code Section 409A. For purposes of Code Section 409A, the Employee’s right to receive installment payments pursuant to this Agreement
shall be treated as a right to receive a series of separate and distinct payments.
23.3 If Employee
is deemed on the date of termination to be a “specified employee” within the meaning of that term under Code Section 409A(a)(2)(B), then with regard to any payment or the provision of any benefit that is considered “nonqualified deferred
compensation” under Code Section 409A payable on account of a “separation from service,” such payment or benefit shall be made or provided at the date which is the earlier of (i) the expiration of the six (6)-month period measured from the date
of such “separation from service” of Employee, and (ii) the date of Employee’s death (the “Delay Period”). Upon the expiration of the Delay Period, all payments and benefits delayed pursuant to this Section 24.3 (whether they
would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid or reimbursed on the first business day following the expiration of the Delay Period to Employee in a lump sum, and any remaining payments and benefits due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein.
23.4 With regard
to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Code Section 409A, to the extent that any such reimbursements or in-kind benefits constitute “nonqualified deferred
compensation” under Code Section 409A, (x) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, (y) the amount of expenses eligible for reimbursement, or in-kind benefits, provided
during any taxable year shall not affect the expenses eligible for reimbursement, or in-kind benefits, to be provided in any other taxable year, provided, that this clause (y) shall not be violated with regard to any medical expenses
subject to a limit as set forth in Treasury Regulations Section 1.409A-3(i)(1)(iv)(B), and (z) such payments shall be made on or before the last day of Employee’s taxable year following the taxable year in which the expense occurred.
[SIGNATURE PAGE FOLLOWS]
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The parties hereto have each executed and delivered this Agreement as of the day and year first above written.
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By:
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|||
|
Name: Xxxxxx Xxxxxx
|
|||
|
Title: Chief Financial Officer
|
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[Signature Page to Employment Agreement]
The parties hereto have each executed and delivered this Agreement as of the day and year first above written.
|
ATI Holdings, LLC
|
||
| By: |
|
|
| Name: |
Xxxxxx Xxxxxx
|
|
| Title: |
Chief Financial Officer
|
|
[Signature Page to Employment Agreement]
The parties hereto have each executed and delivered this Agreement as of the day and year first above written.
|
EMPLOYEE
|
|
|
Xxxxxx X. Xxxxx
|
[Signature Page to Employment Agreement]
EXHIBIT A
FORM OF MUTUAL RELEASE
In exchange for good and valuable consideration set forth in that certain Employment Agreement (the “Employment
Agreement”) between the undersigned, Xxxxxx X. Xxxxx (“Employee”) and ATI Physical Therapy, Inc. (the “Company”), the sufficiency of which is hereby
acknowledged, Employee, on behalf of Employee, Employee’s executors, heirs, administrators, assigns and anyone else claiming by, through or under Employee, irrevocably and unconditionally, releases, and forever discharges the Company, its
predecessors, successors and related and affiliate entities, including, without limitation, parents and subsidiaries, and each of their respective directors, officers, employees, attorneys, insurers, agents and representatives (collectively, the “Released Parties”), from, and with respect to, any and all debts, demands, actions, causes of action, suits, covenants, contracts, wages, bonuses, damages and any and all claims, demands, liabilities, and
expenses (including attorneys’ fees and costs) whatsoever of any name or nature both in law and in equity that Employee now has, ever had or may in the future have against the Released Parties with respect to Employee’s employment with, or service
as an officer or director of, the Released Parties (severally and collectively, “Claims”), including but not limited to, any and all Claims in tort or contract, whether by statute or common law, and any
Claims relating to salary, wages, bonuses and commissions, the breach of an oral or written contract, unjust enrichment, promissory estoppel, misrepresentation, defamation, and interference with prospective economic advantage, interference with
contract, wrongful termination, intentional and negligent infliction of emotional distress, negligence, breach of the covenant of good faith and fair dealing, and Claims arising out of, based on, or connected with the termination of that Employee’s
employment as set forth in the Employment Agreement, including any Claims for unlawful employment discrimination of any kind, whether based on age, race, sex, disability or otherwise, including specifically and without limitation, claims arising
under or based on Title VII of the Civil Rights Act of 1964, as amended; the Age Discrimination in Employment Act, as amended; the Civil Rights Act of 1991; the Family and Medical Leave Act; the Americans with Disabilities Act, as amended; the
Employee Retirement Income Security Act of 1974; the Equal Pay Act of 1963; the Illinois Human Rights Act; the Illinois Equal Pay Law; the rules under the Illinois Administrative Code relating to discrimination; the Chicago Ordinance on Human
Rights; the Illinois Worker Adjustment and Retraining Notification Act; and the Xxxx County Ordinance on Human Rights; and any other local, state or federal equal employment opportunity or anti-discrimination law, statute, policy, order, ordinance
or regulation affecting or relating to Claims that Employee ever had, now has, or claims to have against the Released Parties; except, in each case, with respect to Claims arising out of or otherwise relating to the purchase, ownership or sale of
any equity securities of the Company or any successor thereof; provided, however, the Employee does not release the Released Parties with respect to claims arising out of or relating to their fraud, gross negligence or willful misconduct. The
Employee further waives any claims the Employee may have for employment by the Company and agrees not to seek such employment or reemployment by the Company in the future.
Employee warrants and represents that Employee has not assigned or transferred to any person or entity any of the Claims released by this Mutual
Release, and Employee agrees to defend (by counsel of the Company’s choosing), and to indemnify and hold harmless, the Released Parties from and against any claims based on, in connection with, or arising out of any such assignment or transfer
made, purported or claimed.
Except for obligations created by this Mutual Release and the Employment Agreement, the Company hereby covenants not to xxx and fully releases
Employee and Employee’s successors and assigns (the “Employee Releasees”), with respect to and from all actions, and claims of any kind, known or unknown, suspected or unsuspected, which the Company may now
have or has ever had against any of the Employee Releasees, including all claims arising from Employee’s position as an officer, director or employee of the Company and the termination of that relationship, as of the date of this Mutual Release;
except, in each case, with respect to Claims arising out of or otherwise relating to the purchase, ownership or sale of any equity securities of the Company or any successor thereof; provided, however, the Company does not release the Employee
Releasees with respect to claims arising out of or relating to their fraud, gross negligence or willful misconduct.
As further consideration for Employee’s entering into the Employment Agreement and this Mutual Release, the Company covenants and agrees that for
one (1) year after the date of this Mutual Release, the Company will instruct its directors and executive officers not to disparage Employee in any manner harmful to Employee’s business or personal reputation. As further consideration for the
Company entering into the Employment Agreement and this Mutual Release, Employee covenants and agrees that for one year after the date of this Mutual Release, Employee will not disparage the Company in any manner harmful to the Company’s business
reputation.
Notwithstanding anything to the contrary in this Mutual Release or the Employment Agreement, the foregoing release shall not cover, and Employee
does not intend to release, any claims that cannot be released as a matter of law; any claims relating to any vested equity securities of the Company including but not limited to stock or options, any claim to any vested benefits under any
qualified Company benefit plan, including the Company 401(k) or pension plan, any rights of indemnification under the Company’s Certificate of Incorporation (the “Certificate”) or Bylaws (the “Bylaws”) or Operating Agreement (the “Operating Agreement”), as applicable, rights to directors and officers liability insurance, or any rights and obligations under the
Employment Agreement. Employee further acknowledges that the Company’s obligations under the Certificate, Bylaws or Operating Agreement are, to the extent required therein, conditioned upon receipt by the Company of an undertaking by Employee to
repay any applicable indemnification amount if it shall be determined by a court of competent jurisdiction by final judicial determination that Employee is not entitled to be indemnified by the Company under the Certificate, Bylaws or Operating
Agreement.
The parties hereto agree that neither this Mutual Release, nor the furnishing of the consideration for this Mutual Release, shall be deemed or
construed at any time to be an admission by the any Released Party or the Employee Releasees of any improper or unlawful conduct.
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EMPLOYEE HAS READ THIS MUTUAL RELEASE AND BEEN PROVIDED A FULL AND AMPLE OPPORTUNITY TO STUDY IT, AND EMPLOYEE UNDERSTANDS THAT
THIS IS A FULL, COMPREHENSIVE AND MUTUAL RELEASE AND INCLUDES ANY CLAIM UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT. EMPLOYEE ACKNOWLEDGES THAT EMPLOYEE HAS BEEN ADVISED IN WRITING TO CONSULT WITH LEGAL COUNSEL BEFORE SIGNING THIS MUTUAL
RELEASE AND THE EMPLOYMENT AGREEMENT, AND EMPLOYEE HAS CONSULTED WITH AN ATTORNEY. EMPLOYEE WAS GIVEN A PERIOD OF AT LEAST TWENTY-ONE DAYS TO CONSIDER SIGNING THIS MUTUAL RELEASE, AND EMPLOYEE HAS SEVEN DAYS FROM THE DATE OF SIGNING TO REVOKE
EMPLOYEE’S ACCEPTANCE BY DELIVERING TIMELY NOTICE OF EMPLOYEE’S REVOCATION TO THE COMPANY’S HUMAN RESOURCES DEPARTMENT AT ITS PRINCIPAL PLACE OF BUSINESS. EMPLOYEE IS SIGNING THIS MUTUAL RELEASE VOLUNTARILY, WITHOUT COERCION, AND WITH FULL
KNOWLEDGE THAT IT IS INTENDED, TO THE MAXIMUM EXTENT PERMITTED BY LAW, AS A COMPLETE AND FINAL RELEASE AND WAIVER OF ANY AND ALL CLAIMS. EMPLOYEE ACKNOWLEDGES AND AGREES THAT THE PAYMENTS SET FORTH IN THE EMPLOYMENT AGREEMENT ARE CONTINGENT UPON
EMPLOYEE SIGNING THIS MUTUAL RELEASE AND WILL BE PAYABLE ONLY IF AND AFTER THE REVOCATION PERIOD HAS EXPIRED.
[SIGNATURE PAGE(S) TO FOLLOW]
-3-
Employee has read this Mutual Release, fully understand it and freely and knowingly agree to its terms.
Dated this _____ day of ___________________, 20___.
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Signature
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Xxxxxx X. Xxxxx
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AGREED AND ACCEPTED:
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By:
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Title:
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Date:
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-4-
EXHIBIT B
Member of the Board of Directors of the Southern New England American Heart Association
EXHIBIT C
[To Be Completed by Employee, if any]
