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EXHIBIT 10.69
AMENDMENT TO EXECUTIVE EMPLOYMENT AGREEMENT
This Amendment dated as of June 14, 1999 supplements and amends the Amended
and Restated Executive Employment Agreement dated as of November 26, 1996 (the
"Employment Agreement") by and between XXXXX X. XXXXX, M.D. (the "Executive")
and PHYSICIANS' SPECIALTY CORP., a Delaware corporation (the "Company").
WITNESSETH
WHEREAS, the Company and TA MergerCo, Inc., a Delaware corporation
("MergerCo") are entering into an Agreement and Plan of Merger, dated as of the
date hereof (as the same may be amended from time to time, the "Merger
Agreement"), which provides, upon the terms and subject to the conditions
thereof, for the merger of MergerCo with and into the Company (the "Merger");
and
WHEREAS, as a condition to the willingness of MergerCo to enter into the
Merger Agreement, MergerCo and the Company have requested that the Executive
agree, and, in order to induce MergerCo and the Company to enter into the Merger
Agreement, the Executive is willing to agree, effective only upon the closing of
the Merger, to amend the Employment Agreement as set forth herein.
NOW, THEREFORE, in consideration of the promises and of the mutual
agreements and covenants set forth herein, in the Merger Agreement and in the
other documents related thereto, the parties hereto agree as follows:
1. Section 2.1 of the Employment Agreement is hereby deleted in its
entirety and the following shall be inserted in lieu thereof:
2.1 Term. The initial term of Executive's employment under this
Agreement (the "Initial Term") shall continue until March 26, 2002. After
the Initial Term, Executive's employment under this Agreement shall
automatically renew for successive additional one (1) year terms ("Renewal
Terms") (the Initial Term and any Renewal Terms being collectively referred
to as the "Term"). The Term shall be subject to termination in accordance
with Section 2.2.
2. Section 2.2(c) of the Employment Agreement is hereby deleted in its
entirety and the following shall be inserted in lieu thereof:
(c) Cause. In addition to any other rights or remedies available to
Company at law, in equity or pursuant hereto, Company may, in its sole
discretion, terminate Executive's employment for "Cause" (as hereinafter
defined) effective immediately upon delivery of written notice to
Executive. For purposes of this Agreement, "Cause" shall mean any of:
(i) the imposition by any governmental authority of any material
restriction or limitation on Executive's ability to perform his services
hereunder;
(ii) (A) Executive has committed an act of deceit or intentional
material misrepresentation with respect to Company or an act
constituting fraud; or (B) Executive has embezzled funds or assets from
Company or any client or customer of Company;
(iii) Executive's breach or default in the performance of any
material provision of this Agreement which Executive has not cured or
corrected to Company's reasonable satisfaction within thirty (30) days
after receiving notice of such breach or default (provided that any
breach by Executive of any obligation under Section 5.4 shall be grounds
for immediate termination "For Cause" without any notice or right to
cure or correct); or
(iv) (A) Executive has engaged in willful misconduct or gross
negligence; or (B) Executive's conduct is materially detrimental to the
reputation, character or standing of Company;
provided, however, that any termination for Cause pursuant to Sections
2.2(c)(iii) or 2.2(c)(iv) shall require prior action by unanimous consent of the
Board of Directors (excluding the Executive).
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3. Section 2.2(d)(ii) of the Employment Agreement is hereby deleted in its
entirety and the following shall be inserted in lieu thereof:
(ii) The Company shall have the right to terminate the Term and
Executive's employment hereunder without cause at any time upon prior
action by unanimous consent of the Board of Directors (excluding the
Executive) and after notice to Executive. In such event, Executive shall
be entitled to the severance benefit provided in Section 6(b).
4. Section 2.2(e) of the Employment Agreement is hereby deleted in its
entirety, and Section 2.2(f) of the Employment Agreement shall hereby be
redesignated Section 2.2(e).
5. Section 6(b) of the Employment Agreement is hereby deleted in its
entirety and the following shall be inserted in lieu thereof:
(b) If Company terminates the Term pursuant to Section 2.2(d)(ii)
Executive shall be entitled to: (a) all salary and bonus amounts accrued
through the Termination Date, and (b) payment, for a period of twelve (12)
months following the Termination Date (the "Continuation Period"), of an
amount equal to: (i) Executive's base salary as of the Termination Date
(with such payments to be made at such times as they would be made if
executive's employment continued for an additional year) less (ii) any
salary or other amounts that Executive is paid by any other person during
that twelve month period other than salary or amounts paid to Executive by
NAENT (and in the event Executive does not increase his work time at NAENT,
Executive hereby agrees to take reasonably diligent action to secure
employment as soon as practicable after any such termination from Company
and to otherwise mitigate his losses resulting from the loss of salary from
Company). Notwithstanding the foregoing, in the event the Company
terminates the Term pursuant to Section 2.2(d)(ii) within ninety (90) days
following a Change of Control (as defined below), the Continuation Period
shall be eighteen (18) months instead of twelve (12) months. For purposes
of this Agreement, "Change of Control" shall mean the acquisition by any
single person or entity or related persons or entities of more than fifty
percent (50%) of the outstanding and issued common stock of the Company
after the date of the Merger. Executive's rights to any of the compensation
or benefits identified in the preceding sentence shall be subject to
Executive's compliance in all respects with each of Executive's obligations
under this Agreement.
6. Section 6(c) of the Employment Agreement is hereby deleted in its
entirety.
This Amendment shall be effective only upon the closing of the Merger, and
if the Merger Agreement is terminated pursuant to Section 9.1 thereof then this
Amendment shall terminate and be of no further force and effect. Except as
specifically set forth herein, the Employment Agreement shall not be amended by
this Amendment and shall remain in full force and effect.
IN WITNESS WHEREOF, the undersigned has executed this Amendment as of the
date first set forth above, and such Amendment shall be effective as of the
effective date of the Merger.
PHYSICIANS' SPECIALTY CORP.
/s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Vice Chairman and Secretary
EXECUTIVE:
/s/ Xxxxx X. Xxxxx, M.D.
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Name: Xxxxx X. Xxxxx, M.D.
