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EXHIBIT 10.9
FORM OF EMPLOYMENT AGREEMENT
THIS AGREEMENT, entered into this ___ day of _____________, 1997, by
and between AmSurg Corp., a Tennessee corporation with its principal place of
business at Xxx Xxxxxx Xxxxx Xxxxxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000 ("Company")
and ________________________ ("Officer");
WITNESSETH:
1. EMPLOYMENT. The Company employs Officer and Officer hereby
accepts employment under the terms and conditions hereinafter set forth.
2. DUTIES. Officer is engaged as ____________________________ of
the Company. Her powers and duties in that capacity shall be those normally
associated with the positions of ____________________________. During the term
of this Agreement, Officer shall also serve without additional compensation in
such other offices of the Company to which she may be elected or appointed by
the Board of Directors.
3. TERM. Subject to provisions of termination as hereinafter
provided, the initial term of Officer's employment under this Agreement shall
begin on July 1, 1996, and shall terminate on July 1, 1997. On each annual
anniversary date of this Agreement, unless the Company notifies Officer that
her employment under this Agreement will not be extended, her employment under
this Agreement shall automatically be extended for a one (1) year period on the
same terms and conditions as are set forth herein; provided, however, that the
term of this Agreement shall not be automatically extended after Officer
reaches age sixty-five (65).
If the Company elects not to extend Officer's employment under this
Agreement, it shall do so by notifying Officer in writing not less than sixty
(60) days prior to the applicable anniversary date of this Agreement. If the
Company does not elect to extend Officer's employment under this Agreement
prior to the date Officer reaches age sixty-five (65) other than for cause,
Officer shall be considered to have been terminated without just cause upon the
expiration of her employment, and Officer will receive the payments and
benefits set forth in Section 8 hereof.
4. COMPENSATION. For all duties rendered by Officer, the Company
shall pay Officer a minimum salary of $_____________per year, payable in equal
monthly installments at the end of each month. In addition thereto, commencing
July 1, 1997 the salary of Officer shall be increased and adjusted upward,
based upon any increase in the Consumer Price Index for Urban Wage Earners and
Clerical Workers, U. S. All City Average Report, of the U. S. Bureau of Labor
Statistics (the "Consumer Price Index") or such index fulfilling the same or
similar purpose in the event the Consumer Price Index is no longer maintained
(the Consumer Price Index or such other index, the "Cost of Living Index").
The base month shall be July 1996. Such increase shall not be made retroactive
for the first year, but commencing July 1, 1997, such increase shall be made,
no more frequently than annually, based upon any such increase in the Cost of
Living Index. In determining the adjustment annually, the base figures for
computation shall be the amount of $_________ plus all annual cost of living
adjustments previously made. In addition thereto, each year beginning July
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1, 1997, Officer's compensation will be reviewed by the Board of the Company,
or the Compensation Committee thereof, and after taking into consideration
performance, the Committee may increase Officer's compensation. In the event
the Company establishes a bonus plan for compensating executive or managerial
employees, Officer may participate in such a plan, provided that any bonuses
paid under such plan shall be in addition to the compensation provided for in
this Agreement. All compensation payable hereunder shall be subject to
withholding for federal income taxes, FICA and all other applicable federal,
state and local withholding requirements.
5. EXTENT OF SERVICE. Officer shall devote substantially her
entire time, attention and energies to the business of the Company and shall
not during the term of this Agreement take an active role in any other business
activity without the prior written consent of the Company; but this shall not
prevent Officer from making real estate or other investments of a passive
nature.
6. DISABILITY. In the case of illness or incapacity resulting in
Officer being unable to perform her services, the Company shall provide through
insurance or on its own account coverage for Officer that will provide payment
of full salary and benefits for twelve (12) months. For the period beyond
twelve (12) months, the Company shall provide such coverage to Officer as is
then available to Officer in accordance with Company policy. To the extent
that payments are received from Worker's Compensation or other Company paid
plans, the Company's obligations will be reduced by amounts so received.
7. TERMINATION FOR CAUSE. For the purposes of this Agreement,
the Company shall have "cause" upon (i) a felony conviction of Officer or the
failure of Officer to contest prosecution for a felony, (ii) conviction of a
crime involving moral turpitude, or (iii) willful and continued misconduct or
gross negligence by Officer in the performance of her duties as an officer.
For purposes of this Section 7, "willful" shall be determined by the Board of
Directors of the Company. In making such determination, the Board of Directors
of the Company shall not act unreasonably or arbitrarily.
8. TERMINATION WITHOUT CAUSE. Officer's employment under this
Agreement may be terminated (i) by the Company at any time without cause and
(ii) at any time within twelve (12) months following the occurrence of a Change
In Control (as defined in Section 17 herein) by Officer for Good Reason (as
defined in Section 17 herein) provided:
The Company shall pay Officer one year's salary, payable in twelve
monthly installments following the date of termination of employment, based
upon the annual rate payable as of the date of termination, without further
cost of living adjustments, subject to the following:
(a) Officer shall continue to be covered under health and
life insurance plans of the Company for one (1) year.
Officer's benefits shall be reduced, however, by any
such coverage that Officer receives incident to any
employment during said one-year period.
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(b) No payments shall be made to Officer past age
sixty-five (65) years regardless of the term
remaining after termination.
(c) There shall be no further extension of the Agreement.
(d) Amounts payable by the Company shall be offset and
reduced by any amount earned by Officer in any active
employment that she may receive during said one-year
period from any other source whatsoever, except said
sums shall not include income from dividends,
investments or passive income. As a condition for
Officer receiving her compensation from the Company,
she agrees to furnish the Company annually with full
information regarding such other employment and to
permit inspection of her records at any such
employment and copy of her Federal income tax
returns.
(e) The Company shall receive credit for unemployment
insurance, social security insurance or like amounts
received by Officer.
(f) The payments will cease upon death of Officer
regardless of term remaining.
9. RESTRICTIVE COVENANTS.
(a) Confidential Information. Officer agrees not to
disclose, either during the time she is employed by
the Company or following the termination of her
employment by the Company, any confidential
information concerning the Company, including, but
not limited to, customer lists, contract terms,
financial costs, sales data, or business
opportunities whether for existing, new or developing
businesses.
(b) Non-Compete. Upon voluntary termination of Officer's
employment, upon termination of Officer's employment
by the Company for cause, or upon termination of
Officer's employment without cause, Officer agrees
not to enter into or engage in any phase of the
business conducted by the Company in any state in
which the Company is conducting business on the date
of termination of Officer's employment with the
Company, either as an individual for her own account,
as a partner or joint venturer, or as an employee,
agent, officer, director, or substantial shareholder
of a corporation or otherwise for a period of one (1)
year following the date of Officer's termination of
her employment with the Company. As of the date of
execution of this Agreement, the business conducted
by the Company was defined as single specialty
surgery centers, single specialty physician networks
and single specialty physician practices.
Notwithstanding the foregoing, in the event Officer's
employment is not terminated for cause, if Officer
reasonably shows
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that her proposed employment is not directly
competitive with the Company's business, Officer may
enter into such employment.
(c) Non-Solicitation. Upon termination or expiration of
her employment, whether voluntary or involuntary,
Officer agrees not to directly or indirectly solicit
business from any entity, organization or person
which has contracted with the Company, which has been
doing business with the Company, from which the
Company was soliciting business at the time of
Officer's termination, or from which the Officer knew
or had reason to know that the Company was going to
solicit business at the time of Officer's
termination, for a one-year period from the date of
Officer's termination of her employment with the
Company.
(d) Enforcement. Officer and the Company acknowledge and
agree that any of the covenants contained in this
Section 9 may be specifically enforced through
injunctive relief, but such right to injunctive
relief shall not preclude Company from other remedies
which may be available to it.
(e) Termination. Notwithstanding any provision to the
contrary otherwise contained in this Agreement, the
agreements and covenants contained in this Section 9
shall not terminate upon Officer's termination of her
employment with the Company or upon the termination
of this Agreement under any other provision of this
Agreement.
10. VACATION. During each year of this Agreement, Officer shall
be entitled to vacation in accordance with Company policy in effect from time
to time.
11. BENEFITS. In addition to the benefits specifically provided
for herein, Officer shall be entitled to participate in all benefit plans
maintained by the Company for employees generally according to the terms of
such plans.
12. NOTICES. Any notice required or permitted to be given under
this Agreement shall be sufficient if in writing, and if sent by registered or
certified mail to her residence in the case of Officer, or to its principal
office in the case of the Company.
13. WAIVER OF BREACH. The waiver by either party of any provision
of this Agreement shall not operate or be construed as a waiver of any
subsequent breach by the other party.
14. ASSIGNMENT. The rights and obligations of the Company under
this Agreement shall inure to the benefit of and shall be binding upon the
successors and assigns of the Company. The Officer acknowledges that the
services to be rendered by her are unique and personal, and the Officer may not
assign any of her rights or delegate any of her duties or obligations under
this Agreement.
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15. ENTIRE AGREEMENT. This instrument contains the entire
agreement of the parties. It may not be changed orally but only by an
agreement in writing signed by the party against whom enforcement of any
waiver, change, modification, extension or discharge is sought. This Agreement
shall be governed by the laws of the State of Tennessee.
16. HEADINGS. The sections, subjects and headings in this
Agreement are inserted for convenience only and shall not affect in any way the
meaning or interpretation of this Agreement.
17. DEFINITIONS. For purposes of this Agreement the following
definitions shall apply:
a. "Change in Control" shall mean the occurrence of any
of the following:
(i) the acquisition of at least a majority of the
outstanding shares of Common Stock (or
securities convertible into Common Stock) of
the Company by any person, entity or group
(as used in Section 13(d)(3) and Rule
13d-5(b)(1) under the Exchange Act);
(ii) the merger or consolidation of the Company
with or into another corporation or other
entity, or any share exchange or similar
transaction involving the Company and another
corporation or other entity, if as a result
of such merger, consolidation, share exchange
or other transaction, the persons who owned
at least a majority of the Common Stock of
the Company prior to the consummation of such
transaction do not own at least a majority of
the Common Stock of the surviving entity
after the consummation of such transaction;
(iii) the sale of all, or substantially all, of the
assets of the Company; or
(iv) any change in the composition of the Board of
Directors of the Company, such that persons
who at the beginning of any period of up to
two years constituted at least a majority of
the Board of Directors of the Company, or
persons whose nomination was approved by such
majority, cease to constitute at least a
majority of the Board of Directors of the
Company at the end of such period.
b. "Good Reason" shall exist if after the occurrence of
a Change of Control:
(i) there is a significant change in the nature
or the scope of Officer's authority and
responsibilities;
(ii) there is a reduction in Officer's rate of
base salary or (for reasons other than
Company performance or stock price) overall
compensation; or
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(iii) The Company changes the principal location in
which Officer is required to perform services
outside a fifty mile radius of such location
without Officer's consent.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first written.
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[Officer]
AMSURG CORP.
By:
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