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EXHIBIT 10(v)
RESPONSE ONCOLOGY, INC.
EMPLOYMENT AGREEMENT FOR CHIEF MEDICAL OFFICER
THIS AGREEMENT (the "AGREEMENT") is made as of the 18Th day of
September 2000 (hereinafter "EFFECTIVE DATE") by and between Response Oncology,
Inc. ("ROI"), and Xxxxxx Xxxxxxx ("EXECUTIVE").
RECITALS
WHEREAS, ROI desires to employ Executive as the Chief Medical Officer
of ROI; and,
WHEREAS, Executive desires to be employed by ROI pursuant to the terms
and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the promises and mutual covenants
hereinafter set forth, the parties agree as follows:
1. EMPLOYMENT. Subject to the terms and conditions of this Agreement,
ROI hereby employs Executive and Executive hereby accepts employment from ROI as
Chief Medical Officer, commencing on the Effective Date for the term specified
in Section 6.1 hereof.
2. DUTIES. Executive shall devote his best efforts and his full
business and professional time, energy and skill to the service of ROI and
promotion of its interests in his capacity as Chief Medical Officer. Executive
will carry out duties commensurate with and required by such position, and will
assume senior operating authority and responsibility for ROI, subject to and in
accordance with directions, instructions, and requests from the Chief Executive
Officer and the Board of Directors. Executive agrees not to engage in any other
related business, nor to engage in the practice of his profession to any extent
whatsoever, except pursuant to this Agreement, without the express prior written
consent of ROI.
3. COMPENSATION AND BENEFITS.
3.1 BASE COMPENSATION. ROI shall pay Executive a base salary ("BASE
SALARY") of two hundred and twenty-five thousand dollars ($225,000) per year,
subject to applicable withholdings. Base Salary shall be payable according to
the customary payroll practices of ROI but in no event less frequently than once
each month. The Base Salary shall be reviewed annually and shall be subject to
an adjustment according to the policies and practices adopted by the Board of
Directors from time to time.
3.2 ANNUAL INCENTIVE BONUS. ROI will pay Executive an annual
incentive bonus ("INCENTIVE BONUS"), if any, have up to forty percent (40%) of
Executive's Base Salary at the end of each year. The Incentive Bonus will be
based, in the sole and absolute discretion of the Board of Directors, on the
Board's evaluation of Executive's performance and on performance targets
established annually by the Board.
3.3 ADDITIONAL BENEFITS. Executive will be entitled to participate
in all employee benefit plans or programs and receive all benefits and
perquisites to which any salaried employee is eligible under any existing or
future plan or program established by ROI for salaried employees, including,
without limitation, all plans developed for executive officers of ROI, to the
extent permissible under the terms and provisions of such plans or programs.
These plans or programs may include group hospitalization, health, dental care,
life or other insurance, tax qualified pension, and savings plans. Executive
specifically acknowledges and agrees to adhere to the Company executive
paid-time-off plan as described in exhibit A attached hereto. Executive will
also be entitled to additional payments for (a) continuing medical education;
(b) professional licensure; and (c) professional dues and subscriptions as fully
described on exhibit B. Nothing in this Agreement will preclude ROI from
amending or terminating any of the plans or programs applicable to salaried
employees or executive officers.
3.4 BUSINESS EXPENSES. ROI will reimburse Executive for all
reasonable travel and other
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expenses incurred by Executive in connection with the performance of his duties
and obligations under this Agreement upon Executive's submitting proper
documentation in accordance with ROI's policies for expense reimbursement.
3.5 WITHHOLDING. ROI may directly or indirectly withhold from any
payments under this Agreement all federal, state, city, or other taxes that
shall be required pursuant to any law or governmental regulation.
3.6 RELOCATION. ROI shall reimburse Executive for qualified moving
expenses. Such moving expenses include (1) the transportation of household goods
and personal effects and (2) travel (including lodging and automobile costs, but
not meals) to the new residence. The Executive will be subject to the Company's
policy regarding relocation which requires that three bids be submitted from
nationally recognized relocation companies, one of which shall be from North
American Van Lines, the Company's preferred mover. In the event that the
Executive elects not to use North American Van Lines, the Company will only
reimburse Executive the average of the two lowest bids. A relocation bonus
("RELOCATION BONUS") will be paid to Executive in two installments as follows:
(1) Upon Executive's commencement of employment and establishment of residency,
an amount equal to the difference between twenty-three thousand dollars
($23,000) and the actual moving expenses reimbursed to Executive will be due and
payable. In the event that the sum of the qualified moving expenses exceed
$8,500.00 then such excess shall be added to the $23,000.000 to arrive at a new
amount.; and (2) On April 1, 2001, provided that Executive is actively employed
by ROI and in good standing, an additional bonus of Thirty-nine thousand seven
hundred dollars ($39,700.00) will be paid to Executive. Additionally, if
Executive makes an offer to purchase a home in the Memphis area, ROI will make a
loan available to Executive before closing on that home for the lesser of twenty
percent (20%) of the purchase price or fifty thousand dollars ($50,000). Annual
interest on the loan shall be fixed at the thirty (30) year Treasury xxxx
interest rate, as published in the Wall Street Journal on the date the loan is
funded plus one percentage point. Executive shall pay installments of interest
monthly, on or before the first day of each month, beginning with the first
month after ROI funding of the loan. Interest shall accrue from the Issue Date
on the principal amount. Executive shall pay the principal amount to ROI at the
earlier of closing upon the sale of Executive's home in Pennsylvania or 12
months from the funding of the loan. In the event that this Agreement is
terminated for any reason other than material breach by Executive, Executive
agrees to pay ROI all principal, together with interest due, upon the earlier
of: the closing on the sale of the home or twelve (12) months from the effective
date of termination. If the Executive is terminated for material breach by the
Executive or for cause by ROI, Executive agrees to pay ROI all principal,
together with interest due, within 30 days of the termination. Executive also
agrees to execute and record a second deed of trust in ROI's name as security
for the loan within thirty (30) days after Executive receives the loan amount
from ROI. Executive will also execute an appropriate note in favor of ROI to
evidence his loan payment obligation.
3.7 STOCK OPTIONS. Executive shall be granted stock options for one
hundred thousand (100,000) shares of ROI's common stock vesting over a period of
three (3) years. Thirty-three thousand three hundred and thirty-three (33,333)
shares shall vest at the end of each twelve (12) months of employment, with the
total being fully vested after three (3) years of employment. The exercise price
for each share subject to the options shall be equal to the closing price of ROI
shares on September 5, 2000. In the event of a merger, liquidation or Change in
Control (as that term is defined in Section 6.2.3), the portion of the 100,000
shares, which has not vested prior to the effective date of the merger,
liquidation or Change of Control, shall vest as of that effective date. In the
event the Board of Directors makes additional stock options available to
management personnel, Executive will be eligible for such options provided,
however, that Executive's performance is then satisfactory as determined by the
Board of Directors or their designee in their or his sole discretion.
Notwithstanding anything to the contrary in this Agreement, Executive will
forfeit the right to exercise and shall return and deliver to ROI all vested but
unexercised stock options if Executive, whether during his employment or at any
time afterward, breaches any fiduciary duty owed to ROI or engages in any
non-negligent conduct for which Executive may be immediately terminated pursuant
to Section 6.2.2 of this Agreement.
4. DEATH BENEFIT; DISABILITY COMPENSATION; KEY MAN INSURANCE.
4.1 PAYMENT IN EVENT OF DEATH. In the event of the death of
Executive during the term of this Agreement, ROI's obligation to make payments
under this Agreement shall cease as of the date of death, except for earned but
unpaid Base Salary and Incentive Bonus, which will be paid on a pro-rated basis
for that year.
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Executive's designated beneficiary will be entitled to receive the proceeds of
any life or other insurance or other death benefit programs provided or referred
to in this Agreement, other than "key man" life insurance benefits.
4.2 DISABILITY COMPENSATION. Notwithstanding the disability of
Executive, ROI will continue to pay Executive pursuant to Section 3 hereof
during the term of this Agreement, unless the Executive's employment is earlier
terminated in accordance with this Agreement. In the event the disability
continues for a period of three (3) months, ROI may thereafter terminate this
Agreement and the Executive's employment. Following such termination, ROI will
pay Executive amounts equal to his regular installments of Base Salary, as of
the time of termination, for a period of the greater of (a) the remaining term
of this Agreement or (b) twelve (12) months from the date of such termination.
ROI will consider making reasonable accommodations to Executive's disability in
accordance with applicable laws where required.
4.3 RESPONSIBILITIES IN THE EVENT OF DISABILITY. During the period
Executive is receiving payments following his disability and as long as he is
physically and mentally able to do so, Executive will furnish information and
assistance to ROI and from time to time will make himself available to ROI to
undertake assignments consistent with his position or prior position with ROI.
If ROI fails to make a payment or provide a benefit required as part of this
Agreement, Executive's obligation to provide information and assistance will
end.
4.4 DEFINITION OF DISABILITY. For purposes of this Agreement, the
term "disability" will have the same meaning as is attributed to such term, or
any substantially similar term, in ROI's long term income disability plan as in
effect from time to time.
4.5 KEY MAN LIFE INSURANCE. Upon request by ROI, Executive agrees
to cooperate with ROI in obtaining "key man" life insurance on the life of
Executive with death benefits payable to ROI. Such cooperation shall include the
submission by Executive to a medical examination and his response to inquiries
regarding his medical history.
5. CONFIDENTIALITY; CORPORATE OPPORTUNITIES.
5.1 CONFIDENTIAL INFORMATION DEFINED. The term "CONFIDENTIAL
INFORMATION" means any proprietary or non-public knowledge, idea or information,
in any form (whether tangible or intangible, oral, written, electronic or
otherwise), pertaining in any manner to the business or operations of ROI or its
clients or customers, including but not limited to records, files, software,
know-how, technical information, processes, plans, data, activities, research,
development(s), technology, trade secrets, proprietary information, methods,
specifications, notes, summaries, studies, analysis, instructions, designs,
graphs, drawings, services, products, inventions, computer files, data,
research, patient lists or records, forms, documents, business plans, budgets,
schedules, projections, cost analyses, markets or marketing information, banking
or credit relationships, payroll and other financial or business information.
Confidential Information does not include any information, knowledge, or idea
which (i) is generally known in ROI's or any relevant trade or industry; (ii) is
part of Executive's general knowledge prior to his employment by ROI; (iii) is
disclosed to Executive by a third party who rightfully possesses the information
(without confidential or proprietary restriction) and did not learn of it,
directly or indirectly, from ROI; or (iv) is required by law to be publicly
disclosed or is publicly disclosed pursuant to judicial or administrative
proceedings.
5.2 PROTECTION OF CONFIDENTIAL INFORMATION. During the term of this
Agreement, Executive covenants and agrees that he will hold all Confidential
Information in strictest confidence and will not directly or indirectly
disclose, or permit to be disclosed, any Confidential Information to any person,
firm, corporation, or other business organization or use any Confidential
Information except as required by Executive's responsibilities or in the course
of carrying out Executive's duties pursuant to this Agreement. Additionally, for
five (5) years following termination of this Agreement, Executive covenants and
agrees that he will not directly or indirectly disclose, or permit to be
disclosed, any Confidential Information to any person, firm, corporation, or
other business organization or use any Confidential Information for any purpose
except as permitted in writing by ROI.
5.3 OWNERSHIP OF CONFIDENTIAL INFORMATION. Executive recognizes and
agrees that all Confidential Information and all other notes, records, files,
patient lists, forms and other documents and the like relating to ROI's
business, and all computer files, programs and information which Executive
prepares, uses, has,
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obtains, or otherwise comes into contact with during the term of this Agreement
will be and remain ROI's sole property, and shall not be removed from ROI's
offices except as required in the course of Executive's work, and shall be
returned and delivered to ROI upon termination of this Agreement or earlier if
requested by ROI. After termination of this Agreement or at any other time
requested by ROI, Executive shall not retain any copies, abstracts, sketches or
other physical embodiment of any items which embody, reflect, contain or
evidence Confidential Information. Executive acknowledges that any use or
disclosure of Confidential Information outside the scope of his employment would
cause irreparable and continuing injury to ROI for which no award of monetary
damages would be adequate, and that injunctive relief for ROI would be
appropriate, in addition to any other rights ROI may have, to restrain and bar
any such use or disclosure or threatened use or disclosure. Executive hereby
waives any requirement that ROI submit proof of the economic value of any trade
secret or post a bond or other security.
5.4 CORPORATE OPPORTUNITIES. If Executive becomes aware of any
possible or existing idea, enterprise, transaction, venture or opportunity which
is or may be related in any way to the past, present or prospective business of
ROI or which may be within the scope of any reasonable expansion of ROI's
business(es) ("CORPORATE OPPORTUNITY"), Executive covenants and agrees that he
shall promptly and fully present the Corporate Opportunity to ROI. Executive
acknowledges and agrees that ROI shall determine, in its sole discretion,
whether to pursue any such Corporate Opportunity and that Executive shall not
pursue for his own benefit or disclose to any third party any Corporate
Opportunity without prior written consent from ROI. If Executive pursues any
Corporate Opportunity without written approval from ROI, ROI shall have the
right to terminate this Agreement pursuant to Section 6.2.2(b).
5.5 FORMER EMPLOYER INFORMATION. Executive agrees that he will
not, during employment with ROI, improperly use or disclose any proprietary
information or trade secrets of any former employer or other person or entity
and that Executive will not bring onto the premises of ROI any unpublished
document or proprietary information belonging to any such employer, person or
entity unless consented to in writing by such employer, person or entity.
5.6 REMEDIES. Nothing in this Section 5 is intended to limit, nor
shall it limit, any remedy of ROI otherwise available under applicable statutory
or other law.
6. TERM AND TERMINATION.
6.1 TERM. This Agreement shall commence on the Effective Date
and remain in effect for an initial period of two (2) years unless terminated
earlier by either party. Thereafter, this Agreement shall automatically renew
for successive one (1) year terms, unless either party provides notice of its
intent not to renew at least ninety (90) calendar days prior to the end of the
initial or any renewal term.
6.2 TERMINATION.
6.2.1 TERMINATION FOR MATERIAL BREACH. Either party may
terminate this Agreement if a material breach by the other party of any term or
condition of this Agreement remains uncured for ten business (10) days after the
breaching party's receipt of written notice of such breach from the
non-breaching party. A material breach by Executive shall include any refusal to
comply with the directions of the Board of Directors or Chief Executive Officer
or with ROI's policies and procedures.
6.2.2 IMMEDIATE TERMINATION FOR CAUSE. ROI shall have the
absolute right at any time, upon written notice to Executive, to terminate
Executive immediately for cause upon the happening of any one or more of the
following events whether or not any such event also constitutes a material
breach of any provision of this Agreement:
(A) Executive's bad faith or gross negligence in the
performance of his duties hereunder; Executive's repeated neglect or
non-performance of his duties hereunder; Executive's intentional nonperformance
of such duties; Executive's intentional malfeasance or willfully poor
performance of his duties; any intentional act or omission that the Executive
knew or should have known would injure the reputation of ROI; any willful or
intentional act, beyond the scope of Executive's duties hereunder, which
materially and negatively affects
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ROI's financial condition; or willful misconduct pertaining to any aspect of
Executive's employment with ROI;
(B) Executive's breach of trust or of fiduciary duty
(including but not limited to improper disclosure or use of Confidential
Information or a Corporate Opportunity), as reasonably determined by the
President and/or Board of Directors of ROI;
(C) Executive's fraud, misappropriation, embezzlement
or other act of dishonesty (including any misrepresentation made by Executive to
ROI during employment or discovery of one made to ROI prior to employment), or
conviction of or entering a plea of nolo contendere to any felony or any
misdemeanor involving dishonesty, fraud, substance abuse or distribution of
controlled substances.
6.2.3 TERMINATION IN THE EVENT OF CHANGE IN CONTROL. In the
event this Agreement is terminated by ROI within one (1) year following a Change
in Control (as that phrase is defined below) ROI will pay to Executive an amount
equal to the then-current Base Salary plus an amount equal to the prior year's
Incentive Bonus. Notwithstanding the foregoing, if Executive has not received
the Incentive Bonus because Executive has not been employed for at least one (1)
year, then Executive shall receive payment equal to the then-current Base Salary
plus the Incentive Bonus prorated based on the number of months employed. In
either event, such payment shall be divided into 12 equal monthly installments
with the first payment being made within 60 calendar days of the termination.
A "CHANGE IN CONTROL" shall occur if an event or series of
events occurs after the effective date of this Agreement which would constitute
either a change in ownership of ROI, within the meaning of Section 280G of the
Internal Revenue Code of 1986, as amended, and the regulations promulgated there
under ("SECTION 280G"), or a change in the ownership of a substantial portion of
ROI's assets, within the meaning of Section 280G (but for purposes of this
definition, the fair market value threshold for determining "a substantial
portion of ROI's assets" shall be "greater than fifty percent").
6.2.4 TERMINATION WITHOUT CAUSE. Both ROI and Executive may
terminate this agreement without cause and in the absence of material breach on
one hundred twenty (120) days' written notice to the other party. In the event
that ROI terminates Executive without cause and in the absence of material
breach, then ROI shall pay Executive the lesser of one (1) year's base salary
plus the annualized amount of the prior year's bonus, if any, or a prorated
amount of the Executive's base pay and bonus based upon the time remaining in
the Executive's agreement. In the event that the Company provides executive with
notice regarding non-renewal of the employment agreement it is mutually agreed
and understood that during the last three months of employment the Executive
will devote significant time and effort to job placement.
6.2.5 TERMINATION FOR MATERIAL BREACH OR WITH CAUSE; VOLUNTARY
TERMINATION. If the Executive is terminated for material breach or with cause
pursuant to Sections 6.2.1 or 6.2.2, or Executive terminates this Agreement in
the absence of a material breach by ROI (regardless of whether there has been a
Change in Control), ROI will not be obligated to pay Executive any compensation
or Incentive Bonus following the effective date of termination but will pay
Executive earned but unpaid Base Salary through the effective date of
termination. In the event of non-renewal, ROI will pay Executive all
compensation earned and any Incentive Bonus determined through the end of the
contract term. Any amounts due to Executive under 6.2.4 or 6.2.5 will be paid
within thirty calendar (30) days of the effective date of termination, unless
otherwise required by law. The exercisability of stock options granted to
Executive shall be governed by any applicable stock option agreements and the
terms of the respective stock option plans.
7. DISPUTE RESOLUTION.
7.1 ARBITRATION PROCEDURE. Any controversy, claim, or dispute
arising out of or relating to this Agreement (including but not limited to the
interpretation, construction, or enforcement of any of the terms of this
Agreement or the breach of any provision of it) shall be settled by arbitration
administered by the American Arbitration Association ("AAA") under its
Commercial Dispute Resolution Procedures, modified to the extent, if any, that
the arbitration rules are inconsistent with the terms of this Section 7. All
such arbitration proceedings shall take place in and be conducted in Memphis,
Tennessee, and shall be conducted by one arbitrator selected in
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accordance with the arbitration rules. The arbitrator shall issue a written
opinion setting forth the arbitrator's findings of fact and conclusions of law.
The arbitrator shall have no authority to award punitive or other damages beyond
the prevailing parties' actual damages and shall not, in any event, make any
ruling, finding, or award that does not conform to the terms and conditions of
this Agreement. The parties agree that the decision of the arbitrator shall be
final, binding, and conclusive. The parties agree that the arbitration award may
be enforced in any court having jurisdiction thereof by the filing of a petition
to enforce said award. All expenses (e.g., the filing fees and arbitrators'
fees) of the arbitration shall be shared equally by the parties. Each party,
however, shall bear the expense of its own counsel, experts, witnesses, and
preparation and presentation of proof.
7.2 EQUITABLE REMEDIES AVAILABLE. Notwithstanding any provision in
Section 7.1 and in addition to the rights and procedures available to the
parties pursuant to Section 7.1, either party may at any time seek injunctive
relief, whether temporary, preliminary, or permanent, and/or an order or
judgment for specific performance from any state or federal court properly
having jurisdiction over the matters then in dispute and located in Memphis,
Tennessee. Executive and ROI each consent to personal jurisdiction and venue of
a court of competent jurisdiction sitting in Memphis, Tennessee for purposes of
any action or proceeding contemplated by this Section 7. The parties agree that
a final order or judgment in any such action or proceeding shall, to the extent
permitted by applicable law, be conclusive and may be enforced in other
jurisdictions by suit on the order or judgment or in any other manner provided
by applicable law related to the enforcement of judgments.
8. COVENANT NOT TO COMPETE OR SOLICIT.
8.1 DURING THE TERM OF EMPLOYMENT. As an inducement to ROI to enter
into this Agreement and in consideration of the amounts payable to Executive
hereunder, Executive covenants and agrees not to Compete with ROI (as defined in
Section 8.3) at any time while he is employed by ROI or receiving any payments
from ROI.
8.2 VOLUNTARY TERMINATION; TERMINATION WITH OR WITHOUT CAUSE. As a
further inducement to ROI to enter into this Agreement and in consideration of
the amounts payable to Executive hereunder, Executive covenants and agrees that,
in the event of a voluntary termination of this Agreement by Executive for any
reason other than for material breach by ROI subject to the exception below, or
in the event of termination by ROI with cause or for material breach (all
regardless of a Change in Control), he will not Compete with ROI for a period of
one (1) year from the date of such termination; provided, however, that if a
voluntary termination by Executive follows a notice by ROI under Section 6.1
that the term of this Agreement will not be automatically extended or if ROI
terminates this Agreement without cause and in the absence of a material breach
by Executive, there will be no restriction on Executive's right to Compete with
ROI after the effective date of termination. The one-year period of
non-competition set forth in this Section 8.2 shall be extended by the duration
of any violation by Executive of this covenant. Executive also covenants that he
will not at any time during or after his employment by ROI disparage ROI or any
of its shareholders, directors, officers, employees or agents.
8.3 DEFINITION OF "COMPETE WITH ROI". For the purposes of this
Section 8, the term "Compete with ROI" means any action(s) by Executive, direct
or indirect, for his own account or for the account of any other person or
entity, either as an officer, director, stockholder, owner, partner, member,
promoter, employee, consultant, advisor, agent, manager, creditor or in any
other capacity, resulting in Executive having any pecuniary interest, legal or
equitable ownership, or other financial or non-financial interest in (including
but not limited to lending of Executive's name), or employment, association or
affiliation with, any corporation, business trust, partnership, limited
liability company, proprietorship or other business or professional enterprise
(including self-employment) that (a) provides outpatient cancer services or
services otherwise competitive with or to any of those provided by ROI or any
affiliate or planned on Executive's date of termination to be provided by ROI or
any affiliate (including but not limited to oncology-related services or
management services to any oncology or hematology practice) within a twenty-five
(25) mile radius of any location where ROI or any subsidiary or affiliate of ROI
performs oncology-related, management or other services at the effective date of
a termination of Executive's employment and which location generated either net
revenue or pre-tax profit equal to or greater than ten (10) percent of the net
revenues or ten (10) percent of ROI's total EBITDA in the year prior to
termination, (b) solicits from any supplier or customer of ROI or diverts or
attempts to divert from ROI (or any affiliate) any
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business of any kind in which ROI or its affiliate is engaged or is similar to
that in which ROI or its affiliate is engaged or plans on the date of
Executive's termination to be engaged (including but not limited to the
solicitation of or interference with any of ROI's suppliers or customers), or
(c) employs or solicits for employment or work as an independent contractor or
otherwise any person employed by ROI during that person's employment by ROI and
for one year thereafter; provided, however, that the term "Compete with ROI"
shall not include ownership (without any more extensive relationship) of less
than a five percent (5%) interest in any publicly-held corporation or other
business entity. Executive acknowledges that U.S. Oncology, Salick Health Care,
Inc., Accredo Health, Inc., Priority Healthcare, Inc., and Caremark RX are among
the entities which provide "outpatient cancer services" and/or services
otherwise competitive with or to any of those contemplated or provided by ROI as
of the date of execution of this Agreement.
8.4 REASONABLENESS OF SCOPE AND DURATION; REMEDIES. Executive
acknowledges that the covenants contained herein are fair and reasonable as to
geographic, professional and temporal scope and are reasonably required to
protect the interests of ROI. Executive acknowledges that his breach or
threatened or attempted breach of any provision of Section 8 would cause
irreparable harm to ROI not compensable in monetary damages and that ROI shall
be entitled, in addition to all other applicable remedies, to a temporary and
permanent injunction and a decree for specific performance of the terms of
Section 8 without being required to prove damages or furnish any bond or other
security.
8.5 SEVERABILITY. The covenants in this Section 8 are severable and
separate, and the unenforceability of any specific covenant shall not affect the
provisions of any other covenant. If any covenant in this Section 8 is held to
be unreasonable, arbitrary or against public policy, such covenant will be
considered to be divisible with respect to geographic, professional and temporal
scope, and such lesser geographic, professional or temporal scope, or all of
them, as a court or arbitrator of competent jurisdiction or authority may
determine to be reasonable, not arbitrary, and not against public policy, will
be effective, binding, and enforceable against Executive.
8.6 NOTICE OF OTHER EMPLOYMENT. Executive will, while any covenant
under this Section 8 is in effect, give written notice to ROI within ten
calendar (10) days after accepting any other employment of the identity of that
employer. ROI may notify such employer that Executive is bound by this Agreement
and furnish such employer with a copy of this Agreement or relevant portions of
it.
9. INDEMNIFICATION OF EXECUTIVE. ROI shall maintain directors' and
officers' liability insurance and shall maintain any other insurance policies
necessary to indemnify Executive, if Executive was or is a party to any third
party proceeding, by reason of the fact that Executive was or is an authorized
representative of ROI, against expenses, judgments, fines and amounts paid in
settlement actually and reasonably incurred by Executive in connection with such
third party proceeding so long as Executive acted in good faith and in a manner
he reasonably believed to be in the best interest of ROI and, with respect to
criminal third party proceedings, had no reasonable cause to believe such
conduct was unlawful. To the extent that Executive has been successful on the
merits or otherwise in defense of any third party or corporate proceeding or in
defense of any claim, issue or matter therein, Executive shall be indemnified
against expenses actually and reasonably incurred by him in connection
therewith.
10. MISCELLANEOUS.
10.1 ASSIGNMENT. Executive agrees that he will not assign, sell,
transfer, delegate or otherwise dispose of or transfer, whether voluntarily or
involuntarily, any rights or obligations under this Agreement. Any purported
assignment, transfer or delegation shall be null and void. Nothing in this
Agreement shall prevent: the consolidation of ROI with, or its merger into, any
other corporation; the sale or exchange by ROI of all or any of its stock to or
with a third party; the sale by ROI of all or substantially all of its
properties or assets; or the assignment by ROI of this Agreement and the
performance of its obligations hereunder to any successor in interest, parent,
subsidiary or affiliate.
10.2 BINDING AGREEMENT. Subject to Section 10.1, this Agreement
shall be binding upon and shall inure to the benefit of the parties and their
respective heirs, legal representatives, successors and permitted assigns.
10.3 AMENDMENT. No change or modification of this Agreement shall
be valid or binding
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upon the parties unless and until the same is in writing and signed by both
parties.
10.4 NOTICE. Any notice to be provided pursuant to this Agreement
shall be in writing and shall be provided by hand delivery or certified mail,
return receipt requested to the addresses listed below or to such other address
as may have been furnished to the other party in writing:
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Notices to ROI: Response Oncology, Inc.
0000 Xxxxxx Xxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Attn: Chief Executive Officer
Notices to Employee: Xxxxxx Xxxxxxx, M.D.
Any notice provided pursuant to this Agreement shall be
effective as of the earlier of the date received or within three (3) business
days after mailing by certified mail, return receipt requested. Either party, by
written notice to the other party, may change the address, persons, or entities
to whom notice is to be provided.
10.5 HEADINGS. The headings, captions, and titles appearing in this
Agreement are inserted only as a matter of convenience and in no way define,
limit, construe, or describe the scope or intent of the Agreement or any
paragraph or provision therein.
10.6 WAIVER OF BREACH. The waiver by either party of a breach or
violation of any provision of this Agreement shall not operate as or be
construed to be a waiver of any subsequent breach of this Agreement. Further,
neither party shall be deemed to have waived any provision of or right under
this Agreement unless such waiver is set forth in writing signed by the party
against whom waiver is asserted. No failure to exercise and no delay in
exercising any right, remedy or power hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, remedy or power
hereunder preclude any other or further exercise thereof or the exercise of any
other right, remedy or power provided herein or by law or in equity.
10.7 SEVERABILITY. If any one or more of the provisions of this
Agreement is ruled to be wholly or partly invalid or unenforceable by a court or
other government body of competent jurisdiction then: (a) the validity and
enforceability of all provisions of this Agreement not ruled to be invalid or
unenforceable shall be unaffected; (b) the effect of the ruling shall be limited
to the jurisdiction of the court or other government body making the ruling; (c)
the provision(s) held wholly or partly invalid or unenforceable shall be deemed
amended, and the Court or other government body is authorized to amend and to
reform the provision(s) to the minimum extent necessary to render it valid and
enforceable in conformity with the parties' intent as manifested in this
Agreement and a provision having a similar economic effect shall be substituted;
and (d) if the ruling and/or the controlling principle of law or equity leading
to the ruling is subsequently overruled, modified, or amended by legislative,
judicial, or administrative action, then the provision(s) in question as
originally set forth in this Agreement shall be deemed valid and enforceable to
the maximum extent permitted by the new controlling principal of law or equity.
10.8 APPLICABLE LAW. The construction, interpretation, and enforcement
of this Agreement shall at all times and in all respects be governed by the laws
of the State of Tennessee, without reference to Tennessee's choice of law or
conflict of law provisions or principles.
10.9 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
and understanding between the parties hereto with respect to the subject matter
hereof, and supercedes any prior written or oral agreement pertaining to the
subject matter hereof. No change or modification of this Agreement shall be
valid or binding upon the parties unless and until the same is in writing and
signed by the party against whom enforcement of such change or modification is
sought.
10.10 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
10.11 COVENANTS AND UNDERTAKINGS OF SECTIONS 5 AND 8; INJUNCTIVE RELIEF
FOR BREACH OR THREATENED BREACH. The covenants and undertakings of Executive in
Sections 5 and 8 are essential elements of this Agreement, and without
Executive's agreement to comply with such covenants, ROI would not have employed
him and entered into this Agreement. ROI and Executive have independently
consulted their respective counsel and have been
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advised in all respects concerning the reasonableness and propriety of such
covenants, with specific regard to the nature of the business conducted by ROI.
Executive's covenants and agreements in Sections 5 and 8 are independent
covenants and the existence of any claim against ROI by Executive under this
Agreement or otherwise will not excuse Executive's breach of any covenant or
agreement in Section 5 or 8. The parties agree that in the event of any breach
or threatened breach of any of the covenants or undertakings of Sections 5 or 8,
the damage or imminent damage to the value and goodwill of ROI's business will
be irreparable and extremely difficult to estimate, making any remedy at law or
in monetary damages inadequate. Accordingly, the parties agree that ROI shall be
entitled to injunctive relief against Executive in the event of any breach or
threatened breach of any such provisions by Executive, in addition to any other
relief (including damages) available to ROI under this Agreement or under
applicable law.
10.12 EXECUTIVE'S REPRESENTATIONS AND WARRANTIES. Executive represents
and warrants that the execution and delivery of this Agreement by Executive do
not, and the performance by Executive of his obligations hereunder will not,
with or without the giving of notice or the passage of time, or both: (a)
violate any judgment, writ, injunction or order of any court, arbitrator or
governmental agency applicable to Executive; or (b) conflict with, result in the
breach of any provision of or the termination of, or constitute a default under,
any agreement to which Executive is a party or by which Executive is or may be
bound.
IN WITNESS WHEREOF, the parties have executed this Agreement by their
duly authorized representatives as of the Effective Date.
RESPONSE ONCOLOGY, INC. EXECUTIVE
Signature: /s/ Xxxxxxx XxXxxxxxx Signature: /s/ Xxxxxx Xxxxxxx, M.D.
------------------------- ------------------------------
Name: Xxxxxxx XxXxxxxxx Name: Xxxxxx Xxxxxxx, M.D.
Title: Chief Executive Officer
Date: August 7, 2000 Date: August 9, 2000
------------------------- -------------------------------
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RESPONSE ONCOLOGY, INC.
EMPLOYMENT AGREEMENT FOR CHIEF MEDICAL OFFICER
ADDITIONAL BENEFITS - EXHIBIT A
This policy was adopted by ROI on July 1, 2000 and as such the draft is being
reviewed and the formal text will be finalized within the next two weeks. The
significant elements of the policy are the following:
- Executives will take time off for vacation, sick, holiday,
education, etc. in accordance with their responsibilities and work
schedule, however there is no specific minimum or maximum time
allotted. Vacation request time exceeding four weeks in a twelve
month period will require the approval of the CEO.
- No specific for sick time, however disabilities will be coordinated
with our disability plan.
- No time will accrue for vacation, holiday, or sick and as such no
pay-outs will occur annually or at time of separation.
The spirit of the policy is to allow the executive flexibility and to minimize
the record keeping.
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RESPONSE ONCOLOGY, INC.
EMPLOYMENT AGREEMENT FOR CHIEF MEDICAL OFFICER
ADDITIONAL BENEFITS - EXHIBIT B
Certain expenses incurred by the Executive for licensure, professional dues and
subscriptions to professional publications may be reimbursed by the Company.
Subject to the restrictions herein noted and the Company's general guidelines
for expense reimbursement, such reimbursement(s) will be paid directly to the
Executive upon submission of a properly completed expense report.
Licensure - The Company will reimburse the Executive for the fee associated with
renewing/maintaining his medical license in one state.
Board re-certification - If the Company requires the Executive to maintain a
Board certification, the Company will reimburse the Executive for reasonable
expenses associated with the re-certification process. In any event, Executive
will be entitled for reimbursement of one board re-certification of his choice.
Continuing Education - The Company will reimburse expenses for continuing
medical education as long as the Executive exercises reasonable discretion in
course selection. That is, the Executive is expected to choose courses that
relate specifically to the Company's business and to exercise prudent judgement
in selecting courses with respect to geographic location. The calendar year
limitation is $4,000.00 that shall include associated airfare, hotel and
incidental expenses.
Professional Association Dues - Subject to the approval of the Chief Executive
Officer or his designee, dues for three professional associations specifically
related to the Company's business may be reimbursed up to a combined annual
limit of $1,000.00.
Professional Journals and Books - The Executive can subscribe to professional
journals that specifically relate to the Company's business. The calendar year
limitation is $1,000.00. Note: If the publication is already part of our
clinical library of shared corporate resources and the Executive chooses to have
his own subscription, reimbursement may not be available.
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