EXHIBIT 6
EMPLOYMENT AGREEMENT
This Agreement among American Medical Response, Inc., a Delaware corporation
(the "Company") and Xxxxx X. Xxxxx ("Executive") is hereby entered into as of
April 1, 1996.
RECITALS:
As of the date of this Agreement, the Company and its affiliates are engaged
in the business of medical transportation services. The operations of the
Company and its subsidiaries are a complex matter requiring direction and
leadership in a variety of arenas, including financial, strategic planning,
regulatory, community relations and others. The Executive is possessed of
certain experience and expertise that qualify him to provide the direction and
leadership required by the Company and its subsidiaries.
Executive is or will be employed by the Company in a confidential
relationship wherein Executive, in the course of his employment with the
Company, will become familiar with and aware of information as to the specific
manner of doing business and the customers of the Company, and its subsidiaries
and future plans with respect thereto, all of which will be established and
maintained at great expense to the Company and its subsidiaries; this
information is a trade secret and constitutes the valuable goodwill of the
Company and its subsidiaries.
Executive recognizes that the business of the Company and its subsidiaries
depends upon a number of trade secrets, including secret techniques, methods and
data. The protection of these trade secrets is of critical importance to the
Company and its subsidiaries.
The Company and its subsidiaries will sustain great loss and damage if
Executive should violate the provisions of paragraph 3 of this Agreement.
Further, monetary damages for such losses would be extremely difficult to
measure.
NOW, THEREFORE, in consideration of the mutual promises, terms, covenants
and conditions set forth herein and the performance of each, it is hereby agreed
as follows:
1. EMPLOYMENT AND DUTIES.
(a) The Company hereby employs Executive as Chief Financial Officer and
Executive Vice President to perform the duties normally associated
therewith. Executive hereby accepts this employment upon the terms and
conditions herein contained. Executive shall faithfully adhere to, execute
and fulfill all policies established by the Company. During the term of his
employment, as defined in paragraph 6(a), Executive shall devote his full
time, attention and efforts to promote and further the business and services
of the Company and perform all services not inconsistent with his position
which the Company s Board of Directors and Chief Executive Officer shall
designate, use his best efforts to promote the Company s interests, and
serve as director of the Company if elected as such.
(b) Executive shall perform such duties, assume such responsibilities
and devote such time, attention and energy to the business of the Company as
the Board of Directors and President of the Company shall from time to time
require and shall have all powers and duties consistent with such positions,
subject to the direction of the Board.
(c) All funds received by Executive on behalf of the Company, if any,
shall be held in trust for the Company and shall be delivered to the Company
as soon as practicable.
(d) The Company agrees to propose to the shareholders of the Company,
upon the recommendation of the Nominating Committee of the Board of
Directors, at each appropriate Annual Meeting of such shareholders during
the term hereof (provided the Executive continues in his position and is not
in material violation of this Agreement) the election or reelection of the
Executive as a member of the Board of Directors of the Company, provided
that the Executive is otherwise eligible for such election.
2. COMPENSATION AND EXPENSES. For all services rendered by Executive to
the Company, the Company shall compensate the Executive as follows:
(a) BASE SALARY. The base salary payable to Executive shall be not
less than $275,000 per year payable in accordance with the Company's
customary pay practices.
(b) ANNUAL BONUS. Executive shall be eligible for an annual
performance bonus subject to the evaluation and approval of the Compensation
Committee of the Board of Directors.
(c) EXPENSES. Executive shall be entitled to reimbursement for
expenses incurred on behalf of the Company in the performance of his duties
hereunder, consistent with the Company's reimbursement policies.
(d) DISABILITY. Executive shall be entitled to receive for a period of
up to six (6) months his base salary and a pro rata portion of his bonus
during such time as, because of illness or physical or mental disability or
other incapacity, he is unable to perform his duties under this Agreement.
Such amounts payable shall be offset by any amounts paid to Executive under
disability insurance policies maintained by the Company.
(e) OTHER BENEFITS. In addition to the benefits described above,
Executive shall be entitled, during the term hereof and subject to any
contribution therefor generally required of executives of the Company, to
participate in any and all employee benefit plans from time to time in
effect for employees or executives of the Company generally, except to the
extent such plans are in a category of benefit otherwise provided to the
Executive. Such benefits and participation shall be subject to (i) the terms
of the applicable plan documents, (ii) generally applicable Company policies
and (iii) the discretion of the Board or any administrative or other
committee provided for in or contemplated by such plan. The Company may
alter, modify, add to or eliminate its employee benefit plans at any time as
it, in its sole judgment, determines to be appropriate, without recourse by
the Executive.
(f) CHANGE OF CONTROL. The parties acknowledge that the Executive is
subject to the provisions of and entitled to certain benefits under the
Company s Executive Separation Allowance Plan. The Executive acknowledges
and agrees that in addition to this Agreement, his inclusion in the Company
s Executive Separation Allowance Plan constitutes good and valuable
consideration for his covenants under Paragraph 3 of this Agreement.
3. NON-COMPETITION AGREEMENT; TRADE SECRETS.
(a) Executive agrees that, during the term of his employment with the
Company and for a two-year period following termination of his employment
with the Company for any reason, he shall not, directly or indirectly, for
himself or on behalf of any other person, company, partnership, corporation
or business of whatever nature:
(i) knowingly call upon any then current customer of the Company or
any of its subsidiaries (including any such customer obtained by the
Executive) for the purpose of soliciting or selling any services or
products in competition with those of the Company or any of its
subsidiaries;
(ii) knowingly solicit any employee of the Company or any of its
subsidiaries for the purpose or with the intent of enticing them away
from or out of the employ of the Company or any of its subsidiaries for
any reason whatsoever;
(iii) establish, enter into, be employed by or for, advise, consult
with or become an owner in or a part of, any company, partnership,
corporation or other business entity or venture, or in any way engage in
business where a material portion of such entity or business competes in
the business of providing medical transportation services with the
Company or any of its subsidiaries, within the United States of America
or within 100 miles of any location in which the Company or any of its
subsidiaries conducts business; or
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(iv) call upon any prospective acquisition candidates on Executive's
own behalf or on behalf of any competitor, which candidate was either
called upon by the Executive or for which Executive made an acquisition
analysis for the Company.
Ownership of not more than one percent of the voting stock of a corporation
whose stock is traded on a national securities exchange or over-the-counter
shall not of itself constitute a violation of this paragraph 3(a).
(b) Executive agrees that he will not, during or after the term of his
employment with the Company, disclose or use for his personal benefit,
nonpublic confidential information relating to the customers or other trade
secrets (whether in existence or proposed) of the Company or any of its
subsidiaries, or any other confidential information of the Company or its
subsidiaries to any person, firm, partnership, corporation or business for
any reason or purpose whatsoever.
(c) Because of the difficulty of measuring economic losses to the
Company and its subsidiaries as a result of the breach of any of the
foregoing covenants, and because of the immediate and irreparable damage
that would be caused to the Company and its subsidiaries for which they may
have no other adequate remedy, Executive agrees that, in the event of a
breach by him of any of the foregoing covenants, the Company or any of its
subsidiaries may, in addition to obtaining any other remedy or relief
available to it, enforce the foregoing covenants by all equitable relief,
including injunctions and restraining orders.
(d) The covenants in this paragraph 3 are severable and separate, and
the unenforceability of any specific covenant shall not affect the
provisions of any other covenant. Moreover, in the event any court of
competent jurisdiction shall determine that the scope, time or territorial
restrictions set forth are unreasonable, then it is the intention of the
parties that such restrictions be enforced to the fullest extent which the
court deems reasonable, and this Agreement shall thereby be reformed.
(e) It is specifically agreed that the post-termination non-competition
period referred to in paragraph 3(a) shall be computed by excluding from
such computation any time during which Executive is in violation of any
provision of this paragraph 3 as determined by a final and nonappealable
decree of a court of competent jurisdiction.
4. RETURN OF COMPANY PROPERTY. All records, plans, memoranda, lists and
other property delivered to Executive by or on behalf of the Company or any of
its subsidiaries or by a customer of any of them (including but not limited to,
any such customers obtained by Executive), and all records compiled by the
Executive which pertain to the business of the Company or any of its
subsidiaries shall be and remain the property of the Company or such subsidiary,
as the case may be, and be subject at all times to its discretion and control.
Likewise, all correspondence with customers or representatives, reports,
records, charts, advertising materials, and any data collected by Executive, or
by or on behalf of the Company, any of its respective subsidiaries or any
representative of any of them shall be delivered promptly to the Company without
request by them upon termination of Executive's employment.
5. INVENTIONS. Executive shall disclose promptly to the Company any and
all conceptions and ideas for inventions, improvements, discoveries and works,
whether or not patentable or copyrightable, which are conceived or made by
Executive solely or jointly with another during the period of employment which
are related to the business or activities of the Company or any of its
subsidiaries or which Executive conceives as a result of his employment by the
Company (collectively, "Proprietary Rights"), and Executive hereby assigns and
agrees to assign all his interests therein to the Company or its nominee. All
copyrightable Proprietary Rights shall be considered to be "works made for
hire". Whenever requested to do so by the Company, Executive shall execute any
and all applications, assignments or other instruments and do such other acts
that the Company shall request to apply for and obtain Letters Patent of the
United States or any foreign country or to otherwise protect the Company's
interest therein. These obligations
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shall continue beyond the termination of employment with respect to inventions,
improvements, discoveries and works, whether or not patentable or copyrightable,
conceived, made or acquired by Executive during the period of employment, and
shall be binding upon Executive's assigns, executors, administrators and other
legal representatives.
6. TERM; TERMINATION; RIGHTS OF TERMINATION.
(a) The initial term of Executive's employment with the Company
hereunder shall, unless terminated as herein provided, continue for a term
of three (3) years ending on the third anniversary of the date of this
Agreement. On each anniversary of the date of this Agreement, unless either
party has given prior written notice of nonrenewal at least 30 days prior to
the date of such anniversary, the term of the Executive's employment with
Company shall automatically be renewed for an additional three (3) year term
commencing on such anniversary, on the same terms and conditions contained
herein, unless otherwise terminated as herein provided. The Executive's
employment with the Company may be terminated in any one of the following
ways:
(i) The death of Executive or the inability of Executive, because of
illness or physical or mental disability or other incapacity which
continues for period in excess six months, to perform his duties under
this Agreement shall terminate Executive's employment.
(ii) The Company may terminate the Executive's employment after
ten-days' written notice to Executive for good cause, including without
limitation:
(A) Executive's willful failure to perform, or gross negligence
in performance of, the Executive's duties and responsibilities to the
Company and its affiliates or in the Executive's obligations under
this Agreement;
(B) Executive's fraud, embezzlement or other material dishonesty
with respect to the Company or any of its affiliates or if Executive
is convicted of, or pleads nolo contendere to, a felony involving
fraud, dishonesty or moral turpitude; or
(C) Executive's exclusion from participation in Medicare,
Medicaid or any other third party reimbursement program, for any
reason, or if Executive has had material civil money penalties or
assessments imposed on him under any federal or state law involving
Medicare, Medicaid or any other third party reimbursement program.
(iii) At any time after the commencement of Executive's employment
with the Company, the Company or Executive may, without cause, terminate
the Executive's employment thirty days after written notice is provided
to the other party.
(iv) The Executive may terminate his employment hereunder for Good
Reason, upon notice to the Company setting forth in reasonable detail the
nature of such Good Reason. The following shall constitute Good Reason
for termination by the Executive:
(A) Failure of the Company to continue the Executive in the
position of Chief Financial Officer and Executive Vice President;
(B) Material diminution in the nature or scope of the Executive's
responsibilities, duties or authority;
(C) Material failure of the Company to provide the Executive the
Base Salary and benefits in accordance with the terms of Section 4
hereof; or
(D) Failure by the Company to procure Directors and Officers
Insurance which is substantially equivalent to the coverage provided
at the time of the execution of this Agreement.
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(b) Upon termination of Executive's employment pursuant to clause (i) of
paragraph 6(a), by the Company pursuant to clause (iii) of paragraph 6(a)
(other than upon expiration of the initial or any successive term after
notice in accordance with paragraph 7(a)) or for Good Reason pursuant to
clause (iv) of paragraph 6(a), Executive shall be entitled to receive (i)
all cash compensation earned under this Agreement to the date of termination
PLUS (ii) an amount equal to last year's cash bonus, if any, prorated for
any partial year prior to termination PLUS (iii) base compensation as in
effect on the date prior to termination for an additional period of eighteen
months PLUS (iv) an amount equal to one and one-half times the greater of
the amount any cash incentive or bonus compensation paid to him during the
preceding twelve months or 50% of the Executive s base salary, and subject
to any employee contribution applicable to the Executive on the date of
termination, for an eighteen month period following the date of termination
the Company shall continue to pay for the cost of the Executive's
participation in the Company's group medical and dental insurance plans,
provided that the Executive is entitled to continue such participation under
applicable state and federal law and plan terms. In addition, upon the date
of such termination all options to purchase common stock of the Company
which were previously granted to the Executive but which have not vested
shall automatically and immediately vest.
(c) Upon termination of Executive's employment by the Company pursuant
to clause (ii) of paragraph 6(a), upon expiration of the initial or any
successive term after notice in accordance with paragraph 7(a), or by the
Executive pursuant to clause (iii) of paragraph 6(a), Executive shall be
entitled to receive all base cash compensation earned under this Agreement
to the date of termination, together with an amount equal to a pro rata
portion of last year's cash bonus based on the number of days worked in the
year of such termination. Such termination of the Executive's employment
shall not otherwise accelerate the payment date of any monies accrued or
accruing to the account of Executive as a result of any bonuses or other
compensation, nor shall termination vest in Executive any right in
connection therewith.
(d) In the event of termination of Executive's employment for any reason
provided in this paragraph 6, all rights and obligations of the Company and
Executive under this Agreement shall cease immediately, except that
Executive's obligations under paragraphs l(c), 3, 4, 5 and 7 hereof shall
survive such termination, and thereafter Executive shall have the right to
receive, and the Company shall be obligated to pay, the compensation as set
forth in paragraphs 6(b) or 6(c).
7. REPRESENTATIONS OF EXECUTIVE. Executive has represented and hereby
represents and warrants to the Company that he is not subject to any restriction
or non-competition covenant in favor of a former employer or any other person or
entity (other than the Company and its subsidiaries), and that the execution of
this Agreement by Executive and his employment by the Company and the
performance of his duties hereunder will not violate or be a breach of any
agreement with a former employer or any other person or entity and Executive
agrees to indemnify the Company for any claim by any third party that such third
party may now have or may hereafter come to have against the Company based upon
or arising out of any non-competition agreement or invention and secrecy
agreement between Executive and such third party.
8. COMPLETE AGREEMENT. There are no oral representations, understandings
or agreements with the Company or any of its officers, directors or
representatives covering the same subject matter as this Agreement and this
Agreement supersedes any prior agreement or understanding between the Company
and the Executive with respect to his employment. This Agreement is the final,
complete and exclusive statement and expression of this Agreement among the
Company and Executive and of all the terms of this Agreement, and it cannot be
varied, contradicted or supplemented by evidence of any prior or contemporaneous
oral or written agreements. The payments, benefits and rights of the Executive
under this agreement are not intended to be duplicative, and to the extent that
the Executive is entitled to payments or benefits with respect to a particular
class or category of benefit which is in the same category or class of a right
to payment or benefit found elsewhere in this Agreement or in any other
arrangement between the
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Company and the Executive, the Executive shall be entitled to the greater
benefit or payment but such payment or benefits shall not be cumulative. This
Agreement may not be later modified except by a further writing signed by the
parties, and no term of this Agreement may be waived except by writing signed by
the party waiving the benefit of such terms.
9. NO WAIVER. No waiver by the parties hereto of any default or breach of
any term, condition or covenant of this Agreement shall be deemed to be a waiver
of any subsequent default or breach of the same or any other term, condition or
covenant contained herein.
10. ASSIGNMENT: BINDING EFFECT. Executive understands that he has been
selected for employment by the Company on the basis of his personal
qualifications, experience and skills. Executive agrees, therefore, that neither
he nor the Company shall assign all or any portion of this Agreement.
11. NOTICE. Whenever any notice is required hereunder, it shall be given
in writing addressed as follows:
To the Company: American Medical Response, Inc.
0000 Xxxxx Xxxxxx Xxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attention: General Counsel
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
To Executive: Xxxxx X. Xxxxx
0000 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Notice shall be deemed given and effective three (3) days after the deposit in
the U.S. mail of a writing addressed as above and sent first class mail,
certified, return receipt requested, or when actually received. Either party may
change the address for notice by notifying the other party of such change in
accordance with this paragraph 11.
12. SEVERABILITY: HEADINGS. If any portion of this Agreement is held
invalid or inoperative, the other portions of this Agreement shall be deemed
valid and operative and, so far as is reasonable and possible, effect shall be
given to the intent manifested by the portion held invalid or inoperative. The
paragraph headings herein are for reference purposes only and are not intended
in any way to describe, interpret, define or limit the extent or intent of this
Agreement or of any part hereof.
13. MISCELLANEOUS. This Agreement shall in all respects be construed
according to the laws of The State of Colorado. This Agreement may be executed
in any one or more counterparts, each of which shall be deemed to be an original
but all of which together shall constitute one and the same instrument.
AMERICAN MEDICAL RESPONSE, INC.
By /s/_PAUL T. SHIRLEY________________
Xxxx X. Xxxxxxx
CHIEF EXECUTIVE OFFICER AND
PRESIDENT
EXECUTIVE:
/s/_DAVID C. COLBY__________________________
Xxxxx X. Xxxxx
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